text:
    NOVITA INDUSTRIES, L.L.C., Appellant and Cross-Appellee, v. LORAIN COUNTY BOARD OF REVISION et al., Appellees; Lorain City School District Board of Education, Appellee and Cross-Appellant.
    No. 2015-2073
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided May 30, 2018
    Black, McCuskey, Souers & Arbaugh, and Thomas W. Connors, Canton, for appellant and cross-appellee.
    Kolick & Kondzer, Thomas A. Kondzer, and Joseph A. Volpe, Westlake, for appellee and cross-appellant.
   Per Curiam.

{¶ 1} In this property-tax appeal, we address the "continuing-complaint" jurisdiction of appellee Lorain County Board of Revision ("BOR") over the value of a property for tax years 2012, 2013, and 2014. The taxpayer and property owner, appellant and cross-appellee, Novita Industries, L.L.C., sought a reduction from the value determined by the Lorain County auditor for those three years by asserting a continuing complaint. Novita predicated its claim on its originally filed complaint, which had challenged the property valuation for tax year 2009; that complaint was finally determined in 2014, and Novita's continuing complaint sought to apply the same value determined in that case to 2012, 2013, and 2014.

{¶ 2} In its appeal to this court, Novita challenges the decision of the Board of Tax Appeals ("BTA") that the BOR lacked continuing-complaint jurisdiction over tax year 2014. On cross-appeal, appellee and cross-appellant, Lorain City School District Board of Education ("BOE"), raises a more fundamental challenge by arguing that Novita failed to invoke the BOR's continuing complaint jurisdiction for any of the tax years at issue . Namely, the BOE contends that Novita failed to state its opinion of the property value on the form it submitted in 2014 and argues that the alleged omission deprived the BOR of continuing-complaint jurisdiction over any of the three years.

{¶ 3} Because we conclude that the BOR had continuing-complaint jurisdiction to determine the property's value for all three years, we reject the BOE's cross-appeal and we reverse the BTA's refusal to exercise jurisdiction over tax year 2014. We also order a modification to correct a clerical error: we direct that the parcels at issue be assigned an aggregate value of $750,000 for 2012, 2013, and 2014. And we remand the cause for an allocation of the aggregate value to the individual parcels.

I. Background

{¶ 4} Novita purchased the property at issue, a warehouse/industrial plant, in June 2009 for $750,000. Novita filed a decrease complaint for tax year 2009 seeking a reduction of value to that sale price, $750,000. BTA No. 2010-3585, 2014 Ohio Tax LEXIS 2409 (Apr. 15, 2014). The BOR retained the auditor's valuation and Novita appealed to the BTA, which ultimately issued a decision on April 15, 2014, that adopted the sale price as the property value for tax year 2009.

{¶ 5} 2012 was a reappraisal year in Lorain County, and the auditor assigned an aggregate value of $1,647,310 to the parcels at issue for that year. On July 14, 2014, Novita initiated the present proceedings by filing a DTE Form 1, the officially prescribed form for original complaints under R.C. 5715.19(A) ; the form explicitly placed tax years 2012 and 2013 at issue. Novita attached to the DTE Form 1 the BTA's April 15, 2014 decision, which it referred to on the face of the complaint form; the attachment served both as a list of the parcels at issue and as the basis for Novita's claim for reduction. The BOE filed a countercomplaint form seeking retention of the auditor's valuation.

{¶ 6} The BOR held a hearing at which the parties and the BOR members extensively discussed whether the 2009 value of $750,000 should be carried over into the new triennial period. In its prehearing brief to the BOR, Novita specifically requested that the value of $750,000 be carried forward to tax years 2012, 2013, and 2014. The BOR concluded that the law did not permit the carryover, and it therefore retained the auditor's valuation.

{¶ 7} On appeal, the BTA held a hearing at which Novita presented the testimony and appraisal report of Charles G. Snyder, a member of the Appraisal Institute, plus the testimony of an officer of Novita. On the basis of his income-capitalization and sales-comparison approaches, Snyder opined a value of $750,000 as of January 1, 2012-an opinion of value that was equal to the 2009 sale price. Snyder also criticized the cost-approach valuation set forth on the property-record card, which expressed a "current value" of $1,557,760.

{¶ 8} The BTA adopted Snyder's valuation for 2012 and 2013 but ruled that it lacked jurisdiction to determine the value for tax year 2014. Novita has appealed the BTA's jurisdictional ruling regarding 2014, and the BOE has cross-appealed, contending that the BOR lacked jurisdiction to determine the property's value for any of the three years.

II. Analysis

{¶ 9} R.C. 5715.19(D) provides as follows:

If a complaint filed under this section for the current year is not determined by the board within the time prescribed for such determination [i.e., 90 days from the filing of the complaint or countercomplaint, see R.C. 5715.19(C) ], the complaint and any proceedings in relation thereto shall be continued by the board as a valid complaint for any ensuing year until such complaint is finally determined by the board or upon any appeal from a decision of the board . In such case, the original complaint shall continue in effect without further filing by the original taxpayer , the original taxpayer's assignee, or any other person or entity authorized to file a complaint under this section.

(Emphasis added.)

{¶ 10} Because a jurisdictional ruling typically calls into question the proper construction of the statute in relation to the facts of the case, it raises primarily a question of law that we must consider de novo. See Diley Ridge Med. Ctr. v. Fairfield Cty. Bd. of Revision , 141 Ohio St.3d 149, 2014-Ohio-5030, 22 N.E.3d 1072, ¶ 10. Here, the BTA found that "[f]or the BOR to have jurisdiction over tax year 2014, a proper complaint needed to be filed for that tax year after creation of the tax duplicate for that year and [before] March 31 of the following year. * * * As no complaint was filed, the BOR lacked jurisdiction over 2014." BTA Nos. 2014-4243 and 2014-4424, 2015 Ohio Tax LEXIS 4161, *8 (Nov. 30, 2015). There are two elements to this ruling: the first concerns the form Novita used to assert its continuing complaint and the other concerns the timing of Novita's submission.

{¶ 11} Our recent decision in Life Path Partners, Ltd. v. Cuyahoga Cty. Bd. of Revision , 152 Ohio St.3d 238, 2018-Ohio-230, 94 N.E.3d 565, establishes two principles that are pertinent here. First, we acknowledged that "submitting a request letter * * * is enough to invoke the [board of revision's continuing-complaint] jurisdiction." Id. at ¶ 9. Second, we held that "nothing in [ R.C. 5715.19(D) ] authorizes [a board of revision] to dismiss a continuing complaint for lack of timeliness." Id. at ¶ 10.

{¶ 12} Relying on these recently articulated guidelines, we reject both elements of the BTA's jurisdictional ruling in this case. Namely, there was no requirement that Novita file a complaint that was "proper" in form in order to assert its continuing complaint for tax year 2014, because any form of written submission suffices to invoke a board of revision's continuing-complaint jurisdiction under Life Path Partners . Nor was there any limitation on the time for asserting Novita's continuing complaint because, as we held in Life Path Partners , the statute imposes no such limitation.

{¶ 13} To be sure, the time limit the BTA imposed in this matter differs from that addressed in Life Path Partners . In that case, the BTA determined that the taxpayer asserted its continuing complaint too late . Here, the BTA found that as to tax year 2014, the continuing complaint was asserted too early , inasmuch as the auditor's assessment for that year was not yet complete. We conclude, however, that this is a distinction that is not jurisdictionally significant. As in Life Path Partners , "nothing in [ R.C. 5715.19(D) ] authorizes the BOR to dismiss a continuing complaint for lack of timeliness." Life Path Partners at ¶ 10.

{¶ 14} Turning to the first proposition of law asserted in the BOE's cross-appeal, we note that the BOE (1) asserts that Novita failed to request a specific value in its July 2014 submission to the BOR and (2) argues that the alleged omission deprived the BOR of jurisdiction to determine the property's value for any of the three tax years at issue. We reject both the factual premise and the legal argument.

{¶ 15} First, the factual premise is false because the complaint form filed by Novita specifically set forth, as the justification for changing the value, the "[r]uling from the Ohio Board of Tax Appeals under Case No. 2010-3585 Entered 4/15/2014." And Novita attached the BTA decision it referred to, which itself sets forth the redetermined values of the parcels at issue.

{¶ 16} When it filed its complaint form, Novita relied on the attached BTA decision both to identify the parcels and to specify the values that should be assigned to them. Accordingly, the BOE's jurisdictional challenge fails because Novita did assert the value sought for the property when it incorporated the BTA's decision by reference.

{¶ 17} Second, as a matter of law, the requirement that a proposed value be set forth applies to filing original complaints but not to invoking a board of revision's jurisdiction over a continuing complaint. R.C. 5715.19(D) plainly states that when continuing-complaint jurisdiction has been triggered, the original complaint "shall continue in effect without further filing" of any kind at all. Accord AERC Saw Mill Village, Inc. v. Franklin Cty. Bd. of Revision , 127 Ohio St.3d 44, 2010-Ohio-4468, 936 N.E.2d 472, ¶ 35 ( R.C. 5715.19(D)"permits continued jurisdiction without further filing"). Thus, no particular formal requirements constrain the party who asserts a continuing complaint; the litigant may rely on any form of submission that adequately brings its intention to do so to the board of revision's attention.

{¶ 18} We have held that a procedural error or omission ordinarily does not affect jurisdiction in a tax proceeding unless the error or omission constitutes a violation of a requirement set forth in the applicable statutes. Groveport Madison Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 137 Ohio St.3d 266, 2013-Ohio-4627, 998 N.E.2d 1132, ¶ 16, 18, 23. Because R.C. 5715.19(D) specifies no formal requirements for asserting a continuing complaint, there are no jurisdictional prerequisites of a formal nature.

{¶ 19} Finally, the parties are in agreement regarding the second proposition of law asserted in the BOE's cross-appeal: the BTA made a numerical error that did not fully reflect its decision to adopt $750,000 as the aggregate value of all the parcels constituting the property at issue. Specifically, the BTA assigned values to the component parcels that add up to $749,190 rather than $750,000.

{¶ 20} R.C. 5717.04 authorizes us to "modify [the BTA's decision] and enter final judgment in accordance with such modification." Because the issue has been properly preserved and raised and because the parties agree on its proper resolution, we order modification of the BTA's decision to reflect an aggregate property value of $750,000 for the parcels at issue. On remand, the BTA shall determine a proper allocation of the aggregate value among the parcels.

III. Conclusion

{¶ 21} For the foregoing reasons, we reverse the BTA's decision to the extent that it refused to exercise jurisdiction over the subject property's value for tax year 2014 and we hold that the BOR had jurisdiction to determine the property's value for tax years 2012, 2013, and 2014. We also modify the BTA's decision by ordering that an aggregate value of $750,000 be assigned to the parcels at issue for tax years 2012, 2013, and 2014. Finally, we remand the cause to the BTA for an allocation of the aggregate value to the individual parcels.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The STATE EX REL. FOOD AND WATER WATCH; FreshWater Accountability Project, Appellant, v. The STATE of Ohio et al., Appellees.
    No. 2016-1015
    Supreme Court of Ohio.
    Submitted May 16, 2017 Decided January 24, 2018
    James Yskamp and Emily A. Collins, for appellant.
    Michael DeWine, Attorney General, and Brett A. Kravitz and Daniel J. Martin, Assistant Attorneys General, for appellees James Zehringer and Rick Simmers.
    Michael DeWine, Attorney General, and Ryan L. Richardson and Sarah E. Pierce, Assistant Attorneys General, for appellees state of Ohio and Governor John R. Kasich.
    Steptoe & Johnson, P.L.L.C., J. Kevin West, and Lyle B. Brown, Columbus, for appellees Chesapeake Explorations, L.L.C., and Antero Resources Corporation.

      Reporter's Note: This cause was decided on January 24, 2018, but was released to the public on February 14, 2018, subsequent to the resignation of Justice William M. O'Neill, who participated in the decision.

   Per Curiam.

{¶ 1} Food and Water Watch ("FWW") and relator-appellant, FreshWater Accountability Project ("FWAP"), filed a complaint for a writ of mandamus to compel respondents-appellees Rick Simmers, the chief of the oil-and-gas-resources-management division of the Ohio Department of Natural Resources ("ODNR"), and James Zehringer, the director of ODNR (collectively, "the ODNR appellees") to promulgate rules relating to the storage, recycling, treatment, processing, and disposal of waste substances associated with oil and gas drilling. The state of Ohio and the governor of Ohio (collectively, "the state appellees") were also named as respondents in the complaint and are also appellees in this court. The Tenth District Court of Appeals granted summary judgment to appellees on the grounds that FWW and FWAP lack standing. We affirm the court of appeals' judgment.

I. Background

{¶ 2} R.C. 1509.03(A) states that the chief of the oil-and-gas-resources-management division of ODNR "shall adopt" rules, in accordance with R.C. Chapter 119, for the operation of oil and gas wells and production facilities. The Revised Code identifies specific matters the rules must address, including safety in well drilling and operations, protection of the public water supply, and containment and disposal of drilling and production waste. R.C. 1509.03(A)(1), (2), and (4).

{¶ 3} The division chief is also required to adopt rules regarding the storage, recycling, treatment, processing, and disposal of brine and other waste substances. R.C. 1509.22(C). Those rules must establish procedures and requirements governing permits for the handling of brine and other waste substances. Id. Without such a permit, "no person shall store, recycle, treat, process, or dispose of in this state brine or other waste substances associated with the exploration, development, well stimulation, production operations, or plugging of oil and gas resources" after January 1, 2014. R.C. 1509.22(B)(2).

{¶ 4} FWW and FWAP alleged in their complaint that the ODNR appellees have not issued rules governing the permitting process for handling and treating waste from oil and gas operations. Instead, the ODNR appellees have allowed facilities to operate pursuant to "temporary authorization" from Division Chief Simmers.

{¶ 5} For example, on March 6, 2014, Simmers issued an order granting "temporary authorization" for Industrial Waste Control/Ground Tech., Inc. ("IWC") to operate a facility in Youngstown, Ohio, at which "radiological waste characterization, tank cleaning and decontamination, waste solidification, brine storage, and preparation for disposal operations" would occur. The only conditions imposed upon IWC were that the company conduct all operations in compliance with the law and not dispose of brine unlawfully. The temporary authorization to operate is to remain in effect until the division chief promulgates rules under R.C. 1509.22(C) and either IWC receives a permit under the new rules, IWC is denied a permit, or six months elapse from the effective date of the rules.

{¶ 6} Similarly, on January 3, 2014, Simmers granted temporary authority, subject to the same terms and conditions, to the EnerGreen 360 Holding Company, L.L.C., a treatment facility in Belmont County. In total, the complaint in this case lists 23 separate facilities (including IWC and EnerGreen) allegedly operating in Ohio pursuant to temporary authorization orders issued by Simmers.

{¶ 7} FWW and FWAP, two nonprofit organizations, filed a complaint, naming the ODNR appellees and the state appellees as respondents, for a writ of mandamus in the Tenth District Court of Appeals to compel the ODNR appellees to promulgate rules as required by R.C. 1509.03 and 1509.22. Two facility operators, appellees Chesapeake Exploration, L.L.C., and Antero Resources Corporation, sought leave to intervene, which the magistrate granted.

{¶ 8} On December 23, 2014, the state appellees and the ODNR appellees moved to dismiss FWW and FWAP's action for lack of jurisdiction and for failure to state a claim upon which relief could be granted. In their motion, the state appellees and the ODNR appellees asserted that FWW and FWAP lacked standing to assert their claims. FWW and FWAP filed a memorandum contra respondents' motion to dismiss and, in support of their memorandum, filed affidavits of four of their members: David and Bobbie Castle, Hattie Wilkins, and Cheryl Mshar.

{¶ 9} On February 27, 2015, FWW and FWAP filed a "motion for summary judgment and/or for peremptory writ of mandamus." On March 12, 2015, the intervenors filed a motion for summary judgment claiming that FWW and FWAP lacked standing to assert their claims. On April 28, 2015, two more motions were filed seeking summary judgment based on lack of standing: one on behalf of the state appellees and the other on behalf of the ODNR appellees. The state appellees also argued that they had no clear legal duty relevant to the claims in the case.

{¶ 10} On January 14, 2016, a magistrate recommended granting summary judgment in favor of the respondents and the intervenors. The magistrate considered whether FWW and FWAP (through their individual members) could establish traditional standing (i.e., could establish that the respondents' allegedly unlawful conduct caused their members injuries that are likely to be redressed by the requested relief), public-right-doctrine exception to standing, or taxpayer standing to bring suit and concluded that they could not. The magistrate determined that they had failed to establish traditional standing because they could not establish injury.

{¶ 11} FWW and FWAP filed objections to the magistrate's decision. Relators, summarizing their objections, argued that they have traditional standing as associations whose members claimed personal standing to sue. Relators relied on the affidavits of the Castles, Wilkins, and Mshar, arguing that they "demonstrate harm or threats of harm in the form of possible environmental damage and damage to human health" as a consequence of Simmers's failure to promulgate rules pursuant to R.C. 1509.22. In the alternative, FWW and FWAP also argued that the ODNR appellees' failure to promulgate rules pursuant to R.C. 1509.22 is sufficient to establish a public-right-doctrine exception to standing in this case.

{¶ 12} The Tenth District Court of Appeals, overruling FWW and FWAP's objections, adopted the magistrate's decision and granted summary judgment based on lack of standing. Presiding Judge Dorrian, concurring for different reasons, found that FWW and FWAP demonstrated sufficient harm to at least one of their members to satisfy one of the requirements of traditional standing but failed to demonstrate the redressability requirement-that the relief sought would alleviate the harm alleged. FWAP timely appealed and presents three propositions of law to argue that it has standing to bring this action:

Proposition of Law No. 1: Appellant has standing pursuant to R.C. 2731.02 as a beneficially interested party commanding the performance of an act which the law specifically enjoins.
Proposition of Law No. 2: By having members who are injured by the deprivation of their rights under R.C. 1509.22 and the Ohio Administrative Procedure Act, and by Facilities Operating Pursuant to Chief's Orders, appellant meets the traditional standing requirements to pursue a writ of mandamus action.
Proposition of Law No. 3: The appellant has standing to file a mandamus action to procure enforcement or protection of a public right, and need not show any special individual interest or injury where the appellant is properly interested in the execution of the laws of the state.

II. FWAP waived standing under R.C. 2731.02 and as a taxpayer

{¶ 13} FWAP argues that R.C. 2731.02"provides a 'beneficially interested' party with statutory standing in a writ of mandamus action under the statute." As FWAP notes, "the 'party beneficially interested' standard is completely absent from the Magistrate's Decision." FWAP, however, failed to raise such an objection to the magistrate's decision.

{¶ 14} Additionally, FWAP appears to argue that it has taxpayer standing. The magistrate held that FWAP's failure to pursue the argument resulted in waiver of the argument. FWAP did not object to the magistrate's conclusion that FWW and FWAP had waived the taxpayer-standing argument.

{¶ 15} "The Rules of Civil Procedure are generally applicable in original actions for extraordinary writs." State ex rel. Sautter v. Grey , 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶ 11, citing State ex rel. Ahmed v. Costine , 99 Ohio St.3d 212, 2003-Ohio-3080, 790 N.E.2d 330, ¶ 5, fn. 1, and Gaskins v. Shiplevy , 74 Ohio St.3d 149, 150, 656 N.E.2d 1282 (1995). Civ.R. 53(D)(3)(b)(ii) provides, "An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection." A party shall not assign as error on appeal the court's adoption of any legal conclusion unless the party has objected to that conclusion. Civ.R. 53(D)(3)(b)(iv).

{¶ 16} Here, because FWAP and FWW did not raise an argument relating to standing under R.C. 2731.02 or standing as a taxpayer in their objections to the magistrate's decision, the arguments have been waived on appeal. See State ex rel. Schmidt v. School Emps. Retirement Sys. , 100 Ohio St.3d 317, 2003-Ohio-6086, 798 N.E.2d 1088, ¶ 6 ; Civ.R. 53(D)(3)(b)(iv) ; ProgressOhio.org, Inc. v. JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 16 ; State ex rel. Taylor v. Indus. Comm. , 10th Dist. Franklin No. 05AP-803, 2006-Ohio-4781, 2006 WL 2627557, ¶ 3.

III. FWAP members do not meet traditional standing requirements

{¶ 17} FWAP argues that it has met the requirements for standing as an association because it has demonstrated that its members, the Castles, Wilkins, and Mshar, have met the traditional standing requirements to pursue these claims. We disagree.

{¶ 18} As an association, FWAP has standing to bring a lawsuit on behalf of its members when (1) its members would otherwise have standing to sue in their own right, (2) the interests FWAP seeks to protect are germane to FWAP's purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. League of United Latin Am. Citizens v. Kasich, 10th Dist. Franklin No. 10AP-639, 2012-Ohio-947, 2012 WL 760800, ¶ 19 ; see Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994). At issue is whether FWAP's members have standing to sue in their own right.

{¶ 19} To establish traditional standing, a party must show that the party has "suffered (1) an injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct, and (3) likely to be redressed by the requested relief." Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22, citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "These three factors-injury, causation, and redressability-constitute 'the irreducible constitutional minimum of standing.' " Moore at ¶ 22, quoting Lujan at 560, 112 S.Ct. 2130. FWAP's members do not meet this standard.

{¶ 20} FWAP asserts that the affidavits of its members, the Castles, Wilkins, and Mshar, demonstrate that each member has suffered an injury sufficient to confer standing. However, this court has held that "the injury must be concrete and not simply abstract or suspected" to be compensable. Ohio Contrs. Assn. at 320, 643 N.E.2d 1088. Wilkins states in her affidavit that she "believe[s]" that she and her friends and family are breathing polluted air as a result of IWC's routine operations and that they may be exposed to radioactive contamination in the event of a waste spill. The Castles, in their affidavit, express concern for their health and that of their family members in the Barnesville area due to EnerGreen's oil-and-gas-drilling-waste-treatment facility. The health problems that the Castles and Wilkins identify are speculative and are therefore insufficient to establish standing. Thus, FWAP cannot demonstrate that the Castles or Wilkins would have standing to sue in their own right.

{¶ 21} Mshar's affidavit, however, addresses a specific concern beyond the speculative health issues presented by the Castles and Wilkins. Mshar claims, "I can smell hydrocarbon stenches from the plant, a smell which I first noticed in 2014 after the company received its Chief's Order." Assuming arguendo only that Mshar's affidavit presents sufficient evidence that she has suffered an injury that is traceable to the ODNR appellees' allegedly unlawful conduct, she nevertheless lacks standing because FWAP has not demonstrated that the promulgation of rules pursuant to R.C. 1509.22 will likely redress her injury.

{¶ 22} In addition to FWAP's request for injunctive relief, which courts of appeals do not have jurisdiction to order pursuant to Article IV, Section 3(B)(1) of the Ohio Constitution, FWAP sought an order compelling the promulgation of rules under R.C. 1509.22(C), which provides:

The chief shall adopt rules regarding storage, recycling, treatment, processing, and disposal of brine and other waste substances. The rules shall establish procedures and requirements in accordance with which a person shall apply for a permit or order for the storage, recycling, treatment, processing, or disposal of brine and other waste substances that are not subject to a permit issued under section 1509.06 or 1509.21 of the Revised Code and in accordance with which the chief may issue such a permit or order.

{¶ 23} While the statute requires that the rules "establish procedures and requirements" for the permit process, R.C. 1509.22(C) does not mandate that the rules address odors. Thus, while it is possible that the rules promulgated under R.C. 1509.22(C) could eliminate Mshar's concerns regarding odors, a plain reading of the statute does not support, and FWAP has not shown, that the writ sought-one that would mandate the promulgation of rules-will likely redress the purported injury. See Moore , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, at ¶ 22. This analysis is not to be construed as this court's excusing public officials from carrying out mandatory duties; simply, FWAP has failed to show that Mshar's alleged injury-the odor-will likely be redressed by the promulgation of rules.

{¶ 24} Similar to Presiding Judge Dorrian's conclusion in her separate opinion in the court of appeals, we conclude that Mshar did not establish that the ODNR division chief's regulations would likely remediate the alleged harm. See 2016-Ohio-3135, 2016 WL 2992651, ¶ 10 (Dorrian, P.J., concurring in part and concurring in judgment).

{¶ 25} Because FWAP cannot demonstrate that the Castles or Wilkins have been injured and because FWAP cannot demonstrate that the promulgation of rules will likely redress Mshar's alleged injury, FWAP has not demonstrated that any of its members have traditional standing and thus cannot establish associational standing.

IV. The public-right doctrine does not apply to FWAP

{¶ 26} FWAP asserts that it may pursue its claims in this mandamus action pursuant to the public-right doctrine. FWAP argues that in determining the application of the public-right doctrine, this court should not apply the "rare and extraordinary" requirement from State ex rel. Ohio Academy of Trial Lawyers v. Sheward , 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999), because unlike the relators in Sheward , it is not challenging the constitutionality of the statute, but rather is seeking a writ of mandamus to compel the ODNR appellees "to comply with [R.C.] 1509.22(C) by promulgating rules and regulations." (Emphasis sic.)

{¶ 27} It has long been held and is well established that before an Ohio court can consider the merits of a legal claim, the party seeking relief must establish standing to sue. Ohio Contrs. Assn. , 71 Ohio St.3d at 320, 643 N.E.2d 1088. However, in Sheward , a deeply divided, four-to-three decision, this court held:

Where the object of an action in mandamus and/or prohibition is to procure the enforcement or protection of a public right, the relator need not show any legal or special individual interest in the result, it being sufficient that the relator is an Ohio citizen and, as such, interested in the execution of the laws of this state.

Sheward at paragraph one of the syllabus. However, Sheward also provided that "this court will entertain a public action only 'in the rare and extraordinary case ' where the challenged statute operates, 'directly and broadly, to divest the courts of judicial power .' " (Emphasis sic.) Id. at 504, 715 N.E.2d 1062. "The public-right doctrine represents 'an exception to the personal-injury requirement of standing.' " JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 9, quoting Sheward at 503.

{¶ 28} Since its announcement, Sheward has been heavily criticized. See , e.g. , State ex rel. Ohio AFL-CIO v. Ohio Bur. of Workers' Comp. , 97 Ohio St.3d 504, 2002-Ohio-6717, 780 N.E.2d 981, ¶ 62 (Moyer, C.J., dissenting) (citing law-review articles criticizing Sheward ); see also JobsOhio at ¶ 13. The position that issues are "of great importance and interest to the public" may be resolved by a court without requiring that the parties demonstrate standing to proceed, as identified in Sheward at 471, unfortunately result in " 'political opportunism, allowing the majority to invalidate a disfavored law using a questionable approach.' " Ohio AFL-CIO at ¶ 62 (Moyer, C.J., dissenting), quoting Tracy, Ohio ex rel. Ohio Academy of Trial Lawyers v. Sheward: The End Must Justify the Means , 27 N.Ky.L.Rev. 883, 885 (2000).

{¶ 29} Further, and perhaps a more egregious and problematic abuse, this position permits this court to issue opinions in cases in which there has been no injury, resulting in advisory opinions, which long-standing Ohio law prohibits this court from issuing, Fortner v. Thomas , 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970) ("It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies"); N. Canton v. Hutchinson , 75 Ohio St.3d 112, 114, 661 N.E.2d 1000 (1996) ("It is, of course, well settled that this court will not indulge in advisory opinions"); State ex rel. Keyes v. Ohio Pub. Emps. Retirement Sys. , 123 Ohio St.3d 29, 2009-Ohio-4052, 913 N.E.2d 972, ¶ 29 ; see Newark, Somerset & Straitsville RR. Co. v. Perry Cty. Commrs. , 30 Ohio St. 120, 126 (1876) (When no judgment can be rendered, "a consideration and determination of the question of law submitted and argued would be an idle ceremony" and the case must be dismissed).

{¶ 30} Sheward essentially allows this court to engage in policy-making by ruling on the legislation of the General Assembly in cases that lack an injured party, i.e., a party that can establish traditional standing. Thus, any authority provided by Sheward is, at best, questionable. For these reasons, we reject FWAP's argument that this court should broaden the holding announced in Sheward .

{¶ 31} This court has not granted a public-right-doctrine exception to standing pursuant to Sheward in the past 15 years, and we decline to do so today. Even assuming that this court would still grant a party a public-right-doctrine exception to standing in the appropriate "rare and extraordinary case," FWAP has not met its burden to demonstrate that this case is a "rare and extraordinary case" worthy of the exception. FWAP argues that the division chief's failure to promulgate rules is "of great importance and the public injury is serious." FWAP also contends that the division chief "acted unlawfully and unreasonably approved the orders without following the direction, criteria, or standards from the Ohio General Assembly." However, FWAP has presented this court with no evidence to support its assertions. Therefore, we reject FWAP's arguments that the public-right doctrine should apply in this case.

V. Conclusion

{¶ 32} Accordingly, because FWAP did not demonstrate that its individual members would have standing in their own right, its claim for associational standing fails. Further, we decline to extend Sheward in this case. Because FWAP has waived other arguments regarding standing and has not otherwise demonstrated that it has standing to proceed in this mandamus action, we affirm the judgment of the Tenth District Court of Appeals denying FWW and FWAP's motion for summary judgment, granting summary judgment in favor of the state appellees, the ODNR appellees, and the intervenors, and denying the requested writ of mandamus.

Judgment affirmed.

O'Connor, C.J., and Kennedy, French, Fischer, and DeWine, JJ., concur.

O'Donnell, J., concurs in part and dissents in part, with an opinion.

O'Neill, J., dissents.

O'Donnell, J., concurring in part and dissenting in part.

{¶ 33} I concur in the judgment of the majority in denying a writ of mandamus as to Governor Kasich and the state of Ohio because they have no legal duty to perform acts which would justify issuing a writ of mandamus. I dissent, however, from the decision of the majority to deny mandamus as to Rick Simmers, the chief of the oil-and-gas-resources-management division of the Ohio Department of Natural Resources ("ODNR"), and James Zehringer, the director of ODNR ("collectively, the ODNR appellees") because in my view FreshWater Accountability Project ("FWAP"), and Food and Water Watch ("FWW") did in fact establish standing and each has a statutory duty pursuant to R.C. 1509.03(A) and 1509.22(C) to adopt rules for the operation of oil and gas wells and production facilities and to adopt rules regarding the storage, recycling, treatment, processing, and disposal of brine and other waste substances, and those duties can be compelled by the issuance of a writ of mandamus.

{¶ 34} Standing to bring an action is a question of law, which this court reviews de novo. Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20.

{¶ 35} Before a court can consider the merits of a legal claim, a litigant must prove that it has standing to sue. ProgressOhio.org, Inc. v. JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. To establish standing, a litigant must show that it has "suffered (1) an injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct, and (3) likely to be redressed by the requested relief." Moore at ¶ 22, citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An association has standing to sue on behalf of its members when its members would otherwise have standing to sue in their own right (assuming other requirements, not at issue here, are met). Ohio Contrs. Assn. v. Bicking , 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994). The ODNR appellees dispute whether FWAP proved any of the three requirements.

{¶ 36} The analysis is slightly different in a suit challenging the legality of the government's action or inaction toward a third party. When a plaintiff's claimed injury arises out of the government's allegedly unlawful failure to regulate someone else , the plaintiff must " 'adduce facts showing that [the exercise of discretion by the third party that has not been regulated has] been or will be made in such manner as to produce causation and permit redressability of injury.' " (Brackets added.) Clifton v. Blanchester , 131 Ohio St.3d 287, 2012-Ohio-780, 964 N.E.2d 414, ¶ 16, quoting Lujan at 562, 112 S.Ct. 2130.

{¶ 37} FWAP submitted three affidavits in support of its complaint-one from Cheryl Mshar, one from Hattie Wilkins, and one from David Barton Castle and Bobbie Sue Castle. In its memorandum opposing the motions for summary judgment, FWAP pointed to the Mshar, Wilkins, and Castle affidavits as evidence to support FWAP's organizational standing.

{¶ 38} A Tenth District Court of Appeals magistrate concluded that the Mshar, Wilkins, and Castle affidavits did not establish standing, because they failed to show "an injury that is concrete and not speculative [or] different from that suffered by the public in general." 2016-Ohio-3135, 2016 WL 2992651, ¶ 68. Two judges on the three-judge court of appeals panel adopted the magistrate's decision; in dissent, Judge Dorrian determined that FWAP had proved harm to a member but had failed to prove redressability.

{¶ 39} I disagree with both conclusions because in my opinion, the affidavit of Cheryl Mshar contained sufficient facts to establish standing. According to her affidavit, Mshar is a member of both FWW and FWAP. The house she owns and lives in is .82 miles from the plant operated by Industrial Waste Control/Ground Tech., Inc.

("IWC"). Mshar attests that she "can smell hydrocarbon stenches from the plant, a smell which [she] first noticed in 2014 after the company received" temporary authorization to operate its facility from Simmers, the chief of ODNR's oil-and-gas-resources-management division. She is "routinely forced to breathe polluted air" and believes that she and her family "are being involuntarily exposed to, and are breathing, chemically-polluted and radon-polluted air emitted from fracking waste delivered to or held at the facility as part of routine operations," which is exposing them to "unnecessary risks to personal health."

{¶ 40} The court of appeals considered Mshar's fears of exposure to toxic substances to be "speculation that is not evidence of an injury or harm." 2016-Ohio-3135, 2016 WL 2992651 at ¶ 92. But medical harm was not the only injury she alleged.

{¶ 41} An offensive odor alone can constitute injury. Banford v. Aldrich Chem. Co., Inc. , 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, ¶ 26. The ODNR appellees distinguish Banford and similar cases as nuisance actions, arguing that even if Mshar's allegations regarding the smells emanating from the IWC plant constitute a concrete injury for purposes of a nuisance suit, those allegations are "not sufficient to establish injury for purposes of traditional standing." But the ODNR appellees cite no authority for the proposition that the nature of the direct injury necessary to establish standing varies depending on the relief sought (injunction, mandamus, or money damages).

{¶ 42} On its face, Mshar's affidavit alleges a sufficient injury to satisfy the first element of the standing analysis.

{¶ 43} The next step in the analysis is whether the litigant has shown that the alleged injury is fairly traceable to the allegedly unlawful conduct. The court of appeals deemed Mshar's affidavit inadequate because "there is no expert opinion or evidence to support the inference that the so-called 'hydrocarbon stenches' that she allegedly has smelled since 2014 are in fact causing her harm or injury." 2016-Ohio-3135, 2016 WL 2992651 at ¶ 90.

{¶ 44} Once again, the court of appeals failed to appreciate that Mshar was alleging two categories of harm, one medical, the other aesthetic. The offensive odor is itself an injury irrespective of whether it is affecting people's health. And Mshar satisfied the causation requirement by presenting evidence that the smell began just after IWC received authorization from the ODNR division chief and began operations. Whether or not the odor is also causing her medical harm would be relevant if this were a suit for compensatory damages, but it is not.

{¶ 45} In her concurring opinion, Judge Dorrian wrote that Mshar had failed to establish redressability, the third prong of the standing analysis, because she "did not allege how administrative rules, rather than the existing Chief's orders, would redress her injury." 2016-Ohio-3135, 2016 WL 2992651, at ¶ 10 (Dorrian, P.J., concurring in part and concurring in judgment). In fact, the complaint did contain an allegation of redressability:

33. The Chief acted unlawfully and unreasonably in approving the orders by failing to incorporate into them enforceable requirements for the operation of the facilities covered, and by failing to govern the potential final products of the various treatment processes. Consequently, ODNR is allowing unregulated contamination of the environment and endangerment of human health.
34. By approving Chief's Orders as "temporary approvals" * * * without any but ad hoc regulatory criteria, the Chief cannot reasonably and lawfully conclude that the facilities he is allowing to operate will not cause adverse effects to public health and safety by contamination of water and air in the vicinity of the approved facilities.

{¶ 46} The case was decided on summary judgment, so the question was not whether the complaint alleged redressability but whether FWAP came forward with evidence to establish that issuing an order to compel the ODNR division chief to engage in rulemaking would alleviate the harm.

{¶ 47} R.C. 1509.03(A) mandates that the chief of the oil-and-gas-resources-management division of ODNR adopt rules for the operation of oil and gas wells and production facilities that address safety in well drilling and operations, protection of the public water supply, and containment and disposal of drilling and production waste. Also, R.C. 1509.22(C) directs the division chief to adopt rules regarding the storage, recycling, treatment, processing, and disposal of brine and other waste substances and to establish procedures and requirements governing permits for the handling of brine and other waste substances. Without such a permit, "no person shall store, recycle, treat, process, or dispose of in this state brine or other waste substances associated with the exploration, development, well stimulation, production operations, or plugging of oil and gas resources" after January 1, 2014. R.C. 1509.22(B)(2). Yet here, the division chief is systematically licensing facilities without issuing regulations to protect the public, in violation of a clear statutory duty. Thus, the injury in this case is redressable because absent promulgation of rules, the facilities will never be required to comply with any specific protections aimed at their operation, such as safeguarding the public water supply and containing drilling and production waste, which the statutes require the rules to address.

{¶ 48} As for redressability, the ODNR appellees argue that we cannot know for certain what regulations will result if the ODNR division chief engages in rulemaking-which necessarily means that we cannot know whether the regulations will remediate the odors and potentially hazardous condition. By that logic, the remediation element becomes an insurmountable obstacle to anyone seeking to compel a public official to act. If a public official has a mandatory duty to perform a task but discretion in how to perform that task, the ultimate form and effect of the official's action will always be unknown in advance, but that should not excuse the official's failure to carry out the duty.

{¶ 49} A redressability objection seems especially inappropriate in this case-one in which the ODNR appellees failed to meet their Civ.R. 56 burden. If they had come forward with evidence that the objectionable odors are endemic to the process and cannot or will not be lessened by proper regulations, then FWAP's claims might have trouble going forward. But there is no such evidence in the record.

{¶ 50} Given this conclusion, the sufficiency of the other two affidavits is moot.

{¶ 51} Accordingly, I would affirm in part and reverse in part the judgment of the court of the appeals and remand the cause for further proceedings.


text:
    PAVILONIS, Appellee, v. CUYAHOGA COUNTY BOARD OF REVISION et al., Appellants.
    No. 2015-1386
    Supreme Court of Ohio.
    Submitted January 23, 2018 Decided April 19, 2018
    David M. Lynch and Brian Meister, for appellee.
    Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Reno J. Oradini Jr., Assistant Prosecuting Attorney, for appellants.
   Per Curiam.

{¶ 1} This case involves residential property in Euclid owned by appellee, Jillian Pavilonis. She challenged appellant Cuyahoga County fiscal officer's valuation of the property for tax year 2013. Appellant Cuyahoga County Board of Revision ("BOR") rejected her claim and retained the fiscal officer's valuation. On appeal, the Board of Tax Appeals ("BTA") reversed, reducing the valuation based on a written appraisal. The fiscal officer and the BOR (collectively, "the county") jointly appeal to this court.

{¶ 2} The county presents two issues for review. It first argues that Pavilonis's valuation complaint is jurisdictionally barred under R.C. 5715.19(A)(2) as an improper second filing within the three-year interim period, or triennium, R.C. 5715.19(A)(2), that began in 2012. It also contends that the BTA acted unreasonably and unlawfully in adopting the appraised value, because Pavilonis's husband engaged in the unauthorized practice of law before the BOR. Because these claims lack merit, we affirm the BTA's decision.

Facts and Procedural History

{¶ 3} The fiscal officer valued the subject property at $48,000 for tax year 2013. In her valuation complaint, Pavilonis asked the BOR to decrease the valuation to $12,000. Pavilonis's husband, Eric Uchbar, attended the BOR hearing, along with an appraiser, Ruth Lassiter. Pavilonis did not attend the hearing. Uchbar testified that the property is a two-bedroom condominium unit in fair condition that is rented for about $700 per month. Lassiter testified concerning her written appraisal, in which she opined that the property's value was $18,000 as of the January 1, 2013 tax-lien date.

{¶ 4} The BOR rejected Pavilonis's claim, apparently because it viewed her complaint as an improper second filing within the same interim period. See R.C. 5715.19(A)(2). This concern was based on the fact that the former owner of the property, Transworld Investments, L.L.C., had filed a valuation complaint for tax year 2012. Uchbar is a member of Transworld Investments, and he testified that the company had recently transferred the property to his wife, Pavilonis. He testified that Pavilonis is not affiliated with Transworld Investments.

{¶ 5} Pavilonis appealed to the BTA, where the county argued that her complaint is jurisdictionally defective as a second filing within the triennium. To support its argument, the county submitted documents showing that Uchbar purchased the property in 2008, that he transferred it to Transworld Investments in 2011, and that Transworld Investments transferred it to Pavilonis in 2014. The documents also show that Uchbar, Transworld Investments, and Pavilonis all use the same address.

{¶ 6} The BTA found that Pavilonis's complaint is not barred under R.C. 5715.19(A)(2), because the two complaints concerning the property "were filed by two separate complainants." BTA No. 2014-4517, 2015 Ohio Tax LEXIS 3153, *4 (July 23, 2015). On the merits, the BTA found that Lassiter's appraisal was "competent[,] * * * probative[,] * * * reasonable[,] and well-supported." Id. at *6. Accordingly, it valued the property consistently with Lassiter's opinion of value-$18,000.

{¶ 7} The county now appeals to this court.

Analysis

Standard of review

{¶ 8} We must affirm the BTA's decision if it is reasonable and lawful. R.C. 5717.04. In making this determination, we must consider legal issues de novo, Akron City School Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision , 139 Ohio St.3d 92, 2014-Ohio-1588, 9 N.E.3d 1004, ¶ 10-11, and defer to findings concerning the weight of evidence so long as they are supported by the record, Olmsted Falls Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision , 122 Ohio St.3d 134, 2009-Ohio-2461, 909 N.E.2d 597, ¶ 27.

R.C. 5715.19(A)(2)

{¶ 9} In its first proposition of law, the county argues that the BOR and the BTA lacked jurisdiction to consider Pavilonis's complaint because it was the second valuation complaint filed concerning the property within the triennium. This proposition presents a jurisdictional question that we must review de novo. See Diley Ridge Med. Ctr. v. Fairfield Cty. Bd. of Revision , 141 Ohio St.3d 149, 2014-Ohio-5030, 22 N.E.3d 1072, ¶ 10.

{¶ 10} R.C. 5715.19(A) authorizes a property owner to challenge a real-property valuation by filing a complaint with a county board of revision. The statute, however, limits the number of times a person may file a complaint within a three-year interim period: unless certain exceptions apply, "[n]o person * * * shall file a complaint against the valuation or assessment of any parcel that appears on the tax list if it filed a complaint against the valuation or assessment of that parcel for any prior tax year in the same interim period." R.C. 5715.19(A)(2). In this case, the relevant three-year period includes tax years 2012, 2013, and 2014.

{¶ 11} The county argues that Pavilonis's valuation complaint for tax year 2013 was not authorized under R.C. 5715.19(A)(2), because Transworld Investments had filed a complaint for the subject property for tax year 2012. We reject this argument because it disregards the plain statutory language.

{¶ 12} The county itself submitted evidence showing that Pavilonis owns the property. As the owner, Pavilonis had the right to file a valuation complaint. R.C. 5715.19(A)(1) ("Any person owning taxable real property in the county * * * may file such a complaint regarding any such determination affecting any real property in the county"). The prohibition against multiple complaints within a triennium applies only "if it [i.e., the complainant] filed a complaint against the valuation or assessment of that parcel for any prior tax year in the same interim period." R.C. 5715.19(A)(2). Because Pavilonis did not file the earlier complaint, her claim is not jurisdictionally barred.

{¶ 13} The county contends, however, that the BTA ignored evidence showing that Uchbar was behind the filing of both valuation complaints and the transfer to his wife. It says that Uchbar and Pavilonis each had some interest in the property when both complaints were filed. To be sure, evidence shows that Uchbar has an ownership interest in Transworld Investments; that he (as Transworld Investments' member) executed the deed by which the property was conveyed to Pavilonis; and that he, Transworld Investments, and Pavilonis use the same address. But this evidence does not undermine Transworld Investments' status as a distinct entity or change the fact that different complainants filed the complaints at times when they each had the right to do so under R.C. 5715.19(A)(1).

{¶ 14} Although the county does not expressly allege an alter-ego theory, for its argument to have any chance of success, we would need to disregard Transworld Investments' separate existence. On this record, the county has not shown that such an extraordinary remedy would be appropriate. See Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. , 67 Ohio St.3d 274, 617 N.E.2d 1075 (1993), paragraph three of the syllabus (establishing a three-pronged test for disregarding a corporate form). We therefore reject the county's first proposition of law.

Unauthorized practice of law

{¶ 15} In its second proposition of law, the county argues that Uchbar engaged in the unauthorized practice of law before the BOR by making legal arguments, directly examining Lassiter, and otherwise representing his wife's interests. It contends that because he did so, the tax tribunals lacked jurisdiction and this court is precluded from considering the evidence presented in support of Pavilonis's complaint.

{¶ 16} Although certain nonattorneys are permitted to prepare and file a valuation complaint with a board of revision, nonattorneys are not permitted to "make legal arguments, examine witnesses, or undertake any other tasks that can be performed only by an attorney." Dayton Supply & Tool Co., Inc. v. Montgomery Cty. Bd. of Revision , 111 Ohio St.3d 367, 2006-Ohio-5852, 856 N.E.2d 926, syllabus. Uchbar may have violated this rule by making legal arguments and asking Lassiter a question during the BOR hearing. But even assuming that Uchbar engaged in the unauthorized practice of law, it does not follow that the tax tribunals lacked jurisdiction or that the evidence presented is defective.

{¶ 17} Regarding the jurisdictional question, we have held, "Once jurisdiction has been vested in an administrative tribunal by the proper filing of a complaint or notice of appeal, a later act constituting the unauthorized practice of law will not retroactively divest that tribunal of jurisdiction." Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision , 127 Ohio St.3d 63, 2010-Ohio-4907, 936 N.E.2d 489, ¶ 16. As discussed under the county's first proposition of law, Pavilonis properly invoked the BOR's jurisdiction by filing a valuation complaint. We therefore reject the county's claim that the possible unauthorized practice of law during the BOR hearing divested the tax tribunals of jurisdiction.

{¶ 18} We also reject the county's evidentiary objection. When addressing a similar argument in Richman Properties, L.L.C. v. Medina Cty. Bd. of Revision , 139 Ohio St.3d 549, 2014-Ohio-2439, 13 N.E.3d 1126, we emphasized that we can reverse a BTA decision only if we find that the decision is unreasonable or unlawful, id. at ¶ 25. Therefore, when the unauthorized practice of law has been alleged, we must examine whether the "actions taken at the hearing render the decision itself unreasonable or unlawful." (Emphasis sic.) Id. The unauthorized practice of law is grounds for reversal only if the conduct affected the outcome of the proceeding. Id. at ¶ 27-28.

{¶ 19} The question here, therefore, is whether any unauthorized conduct by Uchbar affected the BTA's decision to assign value based on Lassiter's appraisal. The county itself permitted Uchbar to engage in the conduct it now complains of, and it did not object to Lassiter's appraisal either at the BOR or at the BTA. Because the county failed to object, we hold that it forfeited the arguments that Lassiter's appraisal cannot be considered and that Uchbar's conduct otherwise resulted in reversible error. See Plain Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 130 Ohio St.3d 230, 2011-Ohio-3362, 957 N.E.2d 268, ¶ 20.

{¶ 20} We therefore reject the county's second proposition of law.

Decision affirmed.

O'Connor, C.J., and Kennedy, French, Fischer, and DeWine, JJ., concur.

O'Donnell, J., dissents, with an opinion.

DeGenaro, J., not participating.

O'Donnell, J., dissenting.

{¶ 21} Respectfully, I dissent.

{¶ 22} I would sustain the first proposition of law presented by the Cuyahoga County Board of Revision and the county fiscal officer and conclude that the complaint is barred by R.C. 5715.19(A)(2) and that TransWorld Investments, L.L.C., is an alter ego of its related parties, Jillian Pavilonis and her husband, Eric Uchbar.

{¶ 23} Accordingly, I would reverse the decision of the Board of Tax Appeals, and I would reinstate the valuation of the board of revision.


text:
    STATE EX REL. COWAN, Appellant, v. GALLAGHER, Judge, Appellee. (Two Cases.)
    Nos. 2017-0220 2017-0387
    Supreme Court of Ohio.
    Submitted November 21, 2017 Decided April 18, 2018
    Craig A. Cowan, pro se.
    Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.
   Per Curiam.

{¶ 1} These two appeals, which we consolidate for decision, arise out of the same underlying facts. In each case, appellant, Craig A. Cowan, filed a complaint for a writ of mandamus against appellee, Cuyahoga County Court of Common Pleas Judge Shannon M. Gallagher. The Eighth District Court of Appeals denied both requested writs. We affirm.

Background

{¶ 2} On January 18, 2012, after he was convicted of multiple offenses, including felonious assault, Cowan was sentenced to consecutive prison terms totaling 18 years. State v. Cowan , Cuyahoga C.P. No. CR-11-550536-A. The court of appeals affirmed the convictions but remanded the case for the trial court to consider whether consecutive sentences were appropriate and if so, to enter on the record the findings required by R.C. 2929.14(C)(4). State v. Cowan , 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, 2012 WL 6088306, ¶ 44, 46 (" Cowan I ").

{¶ 3} The trial court resentenced Cowan on February 6, 2013, but again failed to comply with the requirements of R.C. 2929.14(C)(4). The appellate court remanded the case for a new sentencing hearing. State v. Cowan , 8th Dist. Cuyahoga No. 99566, 2013-Ohio-4475, 2013 WL 5594227, ¶ 16-18 (" Cowan II ").

{¶ 4} On November 22, 2013, the trial court sentenced Cowan a third time. He appealed, and the appellate court again remanded the case, this time for the sole purpose of advising Cowan of postrelease-control requirements. State v. Cowan , 8th Dist. Cuyahoga No. 100741, 2014-Ohio-3593, 2014 WL 4101025, ¶ 14-15, 18 (" Cowan III ").

{¶ 5} On September 16, 2014, the trial court issued a journal entry memorializing that it had advised Cowan about postrelease control. The court of appeals again found that the trial court had incorrectly advised Cowan regarding postrelease control and remanded the case for a correct postrelease-control advisement. State v. Cowan , 8th Dist. Cuyahoga No. 101995, 2015-Ohio-2271, 2015 WL 3632566, ¶ 15-17 (" Cowan IV ").

{¶ 6} On remand, the trial court advised Cowan of the postrelease-control requirements on April 7, 2015. For reasons that are unclear, on November 5, 2015, the trial court held a second hearing for the same purpose and issued a nunc pro tunc journal entry. On appeal, the court of appeals again found that the trial court had incorrectly advised Cowan regarding postrelease control. The appellate court again remanded the case for a correct postrelease-control advisement and for correction of an error in the sentencing entry. State v. Cowan , 8th Dist. Cuyahoga No. 103855, 2016-Ohio-8045, 2016 WL 7159079, ¶ 13, 19-20.

{¶ 7} The trial court held a hearing on July 19, 2017, for the purpose of readvising Cowan as to postrelease control. Cowan appealed from the journal entry that the court issued following the hearing. On March 22, 2018, the court of appeals held that the trial court's entry misstated the felony level for one of Cowan's offenses, and remanded the case to the trial court for issuance of a nunc pro tunc entry. State v. Cowan , 8th Dist. Cuyahoga No. 106074, 2018-Ohio-1097, 2018 WL 1445980.

Analysis

Case No. 2017-0220

{¶ 8} In Cowan II , the court of appeals "remand[ed] for a de novo resentencing hearing." Cowan II , 2013-Ohio-4475, 2013 WL 5594227, at ¶ 18. On June 29, 2016, after the court of appeals had decided Cowan IV , Cowan filed a complaint for a writ of mandamus in the Eighth District Court of Appeals. He alleged that the trial court had failed to comply with the appellate court's mandate in Cowan II by failing to conduct a de novo sentencing hearing between Cowan II and Cowan III .

{¶ 9} The court of appeals granted Judge Gallagher's motion for summary judgment and denied the requested writ. Cowan timely appealed to this court.

{¶ 10} To be entitled to a writ of mandamus, a party must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide the requested relief, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13.

{¶ 11} In his sole proposition of law, Cowan asserts that he is entitled to a writ of mandamus because the trial court had a clear legal duty to conduct a de novo sentencing hearing on remand from Cowan II . But Cowan has failed to show that the trial court disobeyed the court of appeals' mandate.

{¶ 12} A writ of mandamus "is an appropriate remedy to require a lower court to comply with an appellate court's mandate directed to that court." State ex rel. Heck v. Kessler , 72 Ohio St.3d 98, 100, 647 N.E.2d 792 (1995). But the use of a writ of mandamus to enforce an appellate court's mandate is reserved for extreme cases of direct disobedience.

{¶ 13} Heck , for example, involved a prosecution for ethnic intimidation under R.C. 2927.12. The trial court declared the statute unconstitutional, and the court of appeals and this court both affirmed. The United States Supreme Court vacated this court's judgment and remanded the case for further consideration. On remand, we declared the statute constitutional and remanded the case to the trial court for a new trial. On remand, however, the trial court dismissed the ethnic-intimidation charges. On those facts, we granted a writ of mandamus requiring the trial court to comply with this court's prior mandate to hold a new trial. Id. at 103, 647 N.E.2d 792 ; see also State ex rel. Potain v. Mathews , 59 Ohio St.2d 29, 391 N.E.2d 343 (1979) (affirming court of appeals' issuance of writ of mandamus to compel trial court to strike claims in complaint that court of appeals had ordered dismissed with prejudice).

{¶ 14} In this case, by contrast, the trial court attempted to comply with the court of appeals' mandate in Cowan II and mostly succeeded, as the court of appeals acknowledged in Cowan III :

In Cowan II , this court specifically remanded for a "de novo resentencing hearing." * * * Because the remand order from this court was for a de novo sentencing hearing, the trial court had to conduct a new sentencing hearing and comply with all sentencing requirements. The court made no mention of postrelease control at the November 2013 resentencing hearing or in the sentencing judgment entry memorializing same. As such, we are constrained to once again reverse this case for the sole purpose of advising Cowan of his postrelease control requirements.

Cowan III , 2014-Ohio-3593, at ¶ 14. The fact that the trial court's attempt to comply with the mandate failed in one respect does not mean that it directly disobeyed the appellate court's instructions.

{¶ 15} Cowan has not identified any manner in which the trial court failed to comply with the court of appeals' mandate in Cowan II other than the trial court's failure to advise him as to postrelease control. And given the court of appeals' above-quoted analysis in Cowan III , any new allegation would be res judicata. State ex rel. Mora v. Wilkinson , 105 Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d 1000, ¶ 14, quoting Hughes v. Calabrese , 95 Ohio St.3d 334, 2002-Ohio-2217, 767 N.E.2d 725, ¶ 12 ("In general, '[r]es judicata bars the litigation of all claims that either were or might have been litigated in a first lawsuit' ").

{¶ 16} We affirm the judgment of the court of appeals in case No. 2017-0220.

Case No. 2017-0387

{¶ 17} In the complaint he filed in case No. 2017-0387, Cowan alleged that before his initial sentencing, the trial court failed to consider whether some of the charged offenses were allied offenses of similar import. He claimed that his convictions are therefore void and that a writ of mandamus should issue to compel the trial court to resentence him. And he asserted that on direct appeal, the court of appeals considered a dismissed felonious-assault count when resolving his allied-offenses claim.

{¶ 18} The court of appeals granted Judge Gallagher's motion for summary judgment and denied the requested writ, based on res judicata. The court observed that it had previously addressed the merits of Cowan's allied-offenses argument on two occasions, first in Cowan I and again on his application to reopen his appeal in State v. Cowan , 8th Dist. Cuyahoga No. 100741, 2015-Ohio-672, 2015 WL 799444.

{¶ 19} Cowan timely appealed to this court. His merit brief sets forth his theory of the case: "The trial court disregarded the State's choice to merge allied offenses and pronounced a separate, individual sentence for Count 8 and Count 9. When the trial court disregarded the State's recommendation to merge prior to sentencing, the sentence became void." Cowan's argument is based on a misreading of our decision in State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234.

{¶ 20} This court held in Williams that a judgment of sentence is void in one particular circumstance: when the trial court determines that multiple counts should be merged but then proceeds to impose separate sentences in disregard of its own ruling. Id. at ¶ 28-29. However, "when a trial court finds that convictions are not allied offenses of similar import, or when it fails to make any finding regarding whether the offenses are allied, imposing a separate sentence for each offense is not contrary to law and any error must be asserted in a timely appeal or it will be barred by principles of res judicata." Id. at ¶ 26. Based on Williams and on Cowan's own allegations, the court of appeals correctly held that Cowan's allied-offense claim of trial-court error is barred by res judicata. For the same reason, Cowan's other claim, that the court of appeals erred in its allied-offenses analysis by considering a dismissed charge, is also barred by res judicata. Id. at ¶ 24, quoting State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8 (this court's "void sentence jurisprudence does not apply to 'challenges to a sentencing court's determination whether offenses are allied' " [emphasis added in Williams ] ).

{¶ 21} We affirm the judgment of the court of appeals in case No. 2017-0387.

Judgments affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeWine, JJ., concur.

DeGenaro, J., not participating.

      This was Cowan's second mandamus complaint. His first complaint sought to compel Judge Gallagher to rule on a motion for self-representation that he had filed in October 2011. The court of appeals dismissed that complaint, State ex rel. Cowan v. Gallagher , 8th Dist. Cuyahoga No. 103470, 2015-Ohio-5156, 2015 WL 8536638, and we affirmed, 147 Ohio St.3d 416, 2016-Ohio-7430, 66 N.E.3d 728.

      The court of appeals' opinion states that its "conclusion that his convictions were not allied offenses of similar import had nothing to do with the felonious assault offenses charged in Counts 1 and 3 for which he was not convicted." 2017-Ohio-471, 2017 WL 526606 at ¶ 5.


author: O'Connor, C.J.

text:
    In re Disqualification of Selvaggio.
    The State of Ohio v. Lute.
    No. 17-AP-120
    Supreme Court of Ohio.
    Decided December 15, 2017
   O'Connor, C.J.

{¶ 1} Regina R. Richards, counsel for the defendant, Sarah Ashley Lute, has filed an affidavit with the clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge Nick Selvaggio from presiding over any further proceedings in the above-referenced criminal case.

{¶ 2} According to Ms. Richards, her client questions Judge Selvaggio's impartiality because the judge, while he served as the county prosecuting attorney, prosecuted the defendant in a prior felony case.

{¶ 3} Judge Selvaggio has responded in writing to the affidavit. The judge acknowledges that in 2012, he participated in the prosecution of an unrelated case against the defendant. But his participation in that previous case, the judge argues, does not require his removal from the pending action. The judge further states that he has not engaged in any conduct in the underlying matter that would cause the defendant to question his impartiality.

{¶ 4} The Code of Judicial Conduct requires a judge who formerly served as a government lawyer to disqualify himself or herself from any "particular matter" in which he or she personally and substantially participated as a government attorney. See Jud.Cond.R. 2.11(A)(7)(b). Accordingly, a judge cannot preside over a case in which the judge previously served as the prosecutor. However, the rule does not automatically require a judge's disqualification from a case involving a defendant whom the judge prosecuted in a previous unrelated case. See In re Disqualification of Batchelor , 136 Ohio St.3d 1211, 2013-Ohio-2626, 991 N.E.2d 242, ¶ 5 ; In re Disqualification of Hedric , 127 Ohio St.3d 1227, 2009-Ohio-7208, 937 N.E.2d 1016, ¶ 6. Here, Judge Selvaggio states that he never appeared as a government lawyer in the underlying matter and that the 2012 case was a different matter that has since been terminated. Under these circumstances, Judge Selvaggio's disqualification is not required merely because he previously prosecuted this defendant in a separate matter.

{¶ 5} Ms. Richards also asserts, however, that Judge Selvaggio should be removed because an appearance of impropriety would exist if he were to preside over the defendant's case. Specifically, Ms. Richards claims that the judge "aggressively" prosecuted the 2012 case, that he has "intimate knowledge of this defendant based on his prior adversarial relationship," and that because Champaign County is small, "the threat of the former adversarial relationship is carried onto the bench." Depending on the circumstances, a judge's prior adversarial relationship with a party appearing before the judge could potentially create an appearance of impropriety. But according to Judge Selvaggio, he had little involvement in the prosecution of the defendant's 2012 case. The judge notes that he appeared only twice in the matter-at the defendant's initial arraignment and at a pretrial scheduling conference-and only as a stand-in attorney. According to the judge, an assistant prosecutor handled all other matters on behalf of the state. Therefore, Judge Selvaggio believes that Ms. Richards's allegation that he "aggressively" prosecuted the defendant is "groundless."

{¶ 6} Based on Judge Selvaggio's response to the affidavit, no reasonable and objective observer would question the judge's impartiality based on his limited involvement in the defendant's 2012 case. "The statutory right to seek disqualification of a judge is an extraordinary remedy. * * * A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions." In re Disqualification of George , 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in this case.

{¶ 7} The affidavit of disqualification is denied. The case may proceed before Judge Selvaggio.


text:
    Disciplinary Counsel v. Brazil.
    No. 2018-0453
    Supreme Court of Ohio.
    Submitted May 3, 2018 Decided May 7, 2018
    {¶ 1} This cause is pending before the Supreme Court of Ohio in accordance with the reciprocal-discipline provisions of Gov.Bar R. V(20).
    {¶ 2} On March 26, 2018, relator, disciplinary counsel, filed with this court a certified copy of an order of the District of Columbia Court of Appeals entered January 18, 2018, in In re Harold E. Brazil , case No. 18-BS-3, disbarring respondent by consent. On March 28, 2018, this court ordered respondent to show cause why identical or comparable discipline should not be imposed in this state. No objections were filed, and this cause was considered by the court.
    {¶ 3} On consideration thereof, it is ordered and adjudged by this court that pursuant to Gov.Bar R. V(20)(B), respondent, Harold Edmund Brazil, Attorney Registration No. 0026638, last known business address in Washington, District of Columbia, is suspended from the practice of law for a period of five years. It is further ordered that respondent will not be reinstated to the practice of law in Ohio until such time as respondent is reinstated to the practice of law in the District of Columbia.
    {¶ 4} It is further ordered that respondent immediately cease and desist from the practice of law in any form and is forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 5} It is further ordered that respondent is forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 6} It is further ordered that respondent is divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 7} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 9} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 10} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, (3) respondent files evidence with the clerk of this court and with disciplinary counsel demonstrating his reinstatement to the practice of law in the District of Columbia, (4) respondent complies with this and all other orders issued by this court, and (5) this court orders respondent reinstated.
    {¶ 11} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 12} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 14} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in the possession or control of respondent;
    {¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 16} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 17} 6. File with the clerk of this court and the disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of notices required herein, and setting forth the address where the affiant may receive communications; and

{¶ 18} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 19} It is further ordered that until such time as respondent fully complies with this order, respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 20} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 21} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 22} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, Dewine, and DeGenaro, JJ., concur.


text:
    Disciplinary Counsel v. Brown.
    No. 2017-1232
    Supreme Court of Ohio.
    Submitted May 8, 2018 Decided May 14, 2018
    {¶ 1} The Board of Professional Conduct filed a certification of default in the office of the clerk of this court on September 6, 2017. On October 2, 2017, this court imposed an interim default suspension upon respondent, Thomas Christopher Brown, pursuant to Gov.Bar R. V(14)(B)(1). The parties were ordered to show cause why the interim default suspension should not be converted into an indefinite suspension. No objections were filed, and this cause was considered by the court.
    {¶ 2} On consideration thereof, it is ordered and adjudged by this court that pursuant to Gov.Bar R. V(14)(E)(1), respondent, Thomas Christopher Brown, Attorney Registration No. 0024054, last known address in Geneva, Ohio, is indefinitely suspended from the practice of law.
    {¶ 3} It is further ordered that respondent immediately cease and desist from the practice of law in any form and that respondent is hereby forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 4} It is further ordered that respondent is hereby forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 5} It is further ordered that respondent is hereby divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 6} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 7} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 8} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 9} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, (3) respondent complies with this and all other orders of the court, and (4) this court orders respondent reinstated.
    {¶ 10} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 11} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 12} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 13} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in the possession or control of respondent;
    {¶ 14} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 15} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 16} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where the respondent may receive communications; and

{¶ 17} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 18} It is further ordered that respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 19} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 20} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    Disciplinary Counsel v. Bennett.
    No. 2018-0527
    Supreme Court of Ohio.
    Submitted April 16, 2018 Decided May 14, 2018
    {¶ 1} On April 16, 2018, and pursuant to Gov.Bar R. V(14)(A), the Board of Professional Conduct filed with this court a certification of default, alleging that respondent, Daniel Lee Bennett, failed to file an answer to a formal complaint pending before the board. Respondent did not file a response.
    {¶ 2} Upon consideration thereof and pursuant to Gov.Bar R. V(14)(B)(1), it is ordered and decreed that an interim default suspension is immediately entered against Daniel Lee Bennett, Attorney Registration No. 0071965, last known business address in Springfield, Ohio, and that the suspension is effective as of the date of this entry.
    {¶ 3} It is further ordered that respondent immediately cease and desist from the practice of law in any form and that he is hereby forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 4} It is further ordered that effective immediately, respondent is forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 5} It is further ordered that respondent is hereby divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 6} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 7} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 8} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with this and all other orders issued by this court, (3) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, and (4) this court orders respondent reinstated.
    {¶ 9} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 10} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 11} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 12} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client, or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 13} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in his possession or control; {¶ 14} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of his disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 15} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 16} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where respondent may receive communications; and

{¶ 17} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 18} It is further ordered that respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 19} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 20} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, by certified mail to the most recent address respondent has given to the Office of Attorney Services.

{¶ 21} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, Dewine, and DeGenaro, JJ., concur.


text:
    State ex rel. Damon v. Disciplinary Counsel
    2018-0366
    Supreme Court of Ohio.
    June 19, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    In Mandamus. On relator's application for dismissal. Application granted. Cause dismissed.


text:
    327-42 Findlay, L.L.C. v. Hancock Cty. Bd. of Revision
    2016-1551
    Supreme Court of Ohio.
    June 19, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On joint motion to remand to the Board of Tax Appeals. Motion granted.


text:
    State v. Lorraine
    1990-1927
    Supreme Court of Ohio.
    June 15, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellee's motion to set an execution date. Motion granted. Charles Lorraine's sentence shall be carried into execution by the warden of the Southern Ohio Correctional Facility or, in his absence, by the deputy warden on Wednesday, March 15, 2023, in accordance with the statutes so provided.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    State v. Bishop
    2017-1716
    Supreme Court of Ohio.
    June 15, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion to continue oral argument. Motion denied.


text:
    Barclay Petroleum, Inc. v. Bailey
    2017-1387
    Supreme Court of Ohio.
    June 15, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion to reschedule oral argument. Motion denied.


text:
    State v. Bishop
    2017-1715
    Supreme Court of Ohio.
    June 15, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion to continue oral argument. Motion denied.


text:
    State v. Christian
    2017-1691
    Supreme Court of Ohio.
    June 14, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for appointment of Brock A. Schoenlein as counsel for appellee. Motion granted contingent upon the filing of an affidavit of indigence within 20 days.


text:
    State v. Soto
    2018-0416
    Supreme Court of Ohio.
    June 14, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion of Joseph A. Benavidez to withdraw and motion for appointment of the Office of the Ohio Public Defender as counsel for appellee. Motions granted.


text:
    George v. Univ. of Toledo Med. Ctr.
    2018-0514
    Supreme Court of Ohio.
    June 14, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion of Danielle Kulik to withdraw. Motion denied as moot.


text:
    State v. Madrigal
    2018-0478
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    In re D.J.
    2018-0479
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    DeGenaro, J., dissents and would accept the cause on proposition of law No. III.


author: O'Donnell, J., dissents.

text:
    Wilkins v. Harrisburg
    2018-0480
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.

French, J., not participating.


text:
    State v. Johnson
    2018-0487
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion to notify and motion requesting review of denial of motion to certify denied.
   O'Connor, C.J., would deny appellant's motion to notify as moot.

Kennedy and DeGenaro, JJ., would deny appellant's motion to notify and motion requesting review of denial of motion to certify as moot.


text:
    State v. West
    2018-0497
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Williams
    2018-0500
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: DeGenaro, J., dissents.

text:
    Ross Sinclaire & Assocs., L.L.C. v. Huntington Natl. Bank
    2018-0504
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., dissents.


text:
    Miracle v. Dept. of Veterans' Servs.
    2018-0562
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
   O'Donnell, J., would accept the cause on proposition of law No. I only.

Kennedy and DeGenaro, JJ., dissent.


author: French, J., dissents.

text:
    Selbee v. Van Buskirk
    2018-0489
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   French, J., dissents.


text:
    Goerlitz v. SCCI Hosps. of Am., Inc.
    2018-0490
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.


text:
    In re Estate of Sarunas v. Abraitis
    2018-0472
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Jones
    2018-0502
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.

Fischer, J., dissents and would accept the cause on proposition of law No. I.


author: DeGenaro, J., not participating.

text:
    Rocky River v. Bucci
    2018-0503
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    Jackson v. Charter Properties
    2018-0483
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Wood
    2018-0493
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Tax Redevelopment, L.L.C. v. Heard
    2018-0474
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Carter
    2018-0482
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Kennedy, J., dissents.

text:
    Jennings v. Jennings
    2018-0505
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


text:
    Deutsche Bank Natl. Trust Co. v. Taylor
    2018-0467
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Montgomery v. Vargo
    2018-0468
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Minifee
    2018-0471
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Hunt
    2018-0475
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    State v. Henry
    2018-0476
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    State v. Churn
    2018-0606
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Brosnan v. Heinen's, Inc.
    2018-0520
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    State v. Dixon
    2018-0576
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion to file amended memorandum denied as moot.
    O'Donnell and Kennedy, JJ., would grant appellant's motion to file amended memorandum.


text:
    State v. Eisenman
    2018-0578
    Supreme Court of Ohio.
    June 20, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW