In re the Appeal of Phoenix Ltd. Partnership of Raleigh

517 S.E.2d 903, 134 N.C. App. 474, 1999 N.C. App. LEXIS 810
CourtCourt of Appeals of North Carolina
DecidedAugust 3, 1999
DocketNo. COA98-752
StatusPublished

This text of 517 S.E.2d 903 (In re the Appeal of Phoenix Ltd. Partnership of Raleigh) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Appeal of Phoenix Ltd. Partnership of Raleigh, 517 S.E.2d 903, 134 N.C. App. 474, 1999 N.C. App. LEXIS 810 (N.C. Ct. App. 1999).

Opinion

LEWIS, Judge.

Appellant Phoenix Limited Partnership (“taxpayer”) disputes the 1993 tax valuation of its property, a 29-story office tower known as Two Hannover Square and an adjacent three-story galleria, situated on 0.6221 acres of land in downtown Raleigh (collectively, “the property”). The property’s initial 1993 valuation was $40,755,536, but this figure was reduced to $31,768,902 upon taxpayer’s appeal to the Wake County Board of Equalization and Review (“the Board”). Taxpayer appealed this decision to the North Carolina Property Tax Commission (“the Commission”), which lowered the figure further to [475]*475$28,150,000. Seeking an even lower valuation, taxpayer now appeals to this Court.

There is no dispute that 1 January 1993 is the critical date for valuation purposes in this case. See N.C. Gen. Stat. § 105-285(d) (1997). In September of 1992, the owner of the property had filed for bankruptcy protection under Chapter 11. By the beginning of 1993, the property was no more than two years old and had but nineteen percent (19%) occupancy. The U.S. Bankruptcy Court approved the sale of the property to taxpayer in February of 1993 for $18,520,000. Taxpayer’s central argument is that this figure more accurately reflects the value of the property than the $28,150,000 figure adopted by the Commission.

The Commission heard testimony from a number of witnesses using different valuation methods to arrive at possible values of the property. Ultimately, the Commission adopted the $28,150,000 value computed under a direct capitalization approach by J. Thomas Hester (“Hester”), an expert witness for Wake County. Taxpayer’s first argument on appeal is a three-part contention that the Commission erred in adopting this value without correcting alleged factual and legal errors affecting Hester’s computation.

We must first address this Court’s standard of review for decisions of the Commission. Our statutes make the following provisions:

(b) So far as necessary to the decision and where presented, the court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action. The court may affirm or reverse the decision of the Commission, declare the same null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission’s findings, inferences, conclusions or decisions are:
(1) In violation of constitutional provisions; or
(2) In excess of statutory authority or jurisdiction of the Commission; or
(3) Made upon unlawful proceedings; or
(4) Affected by other errors of law; or
[476]*476(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted; or
(6) Arbitrary or capricious.

N.C. Gen. Stat. § 105-345.2(b) (1997). We make these determinations in light of the whole record, with due account taken of the rule of prejudicial error. N.C. Gen. Stat. § 105-345.2(c) (1997).

Taxpayer first notes that Hester presented two variations of the income approach in his appraisal: the direct capitalization approach, yielding a value of $28,150,000, and the discounted cash flow method, yielding a value of $29,790,000. The Commission adopted the former approach, despite Hester’s testimony that it was less preferable than the latter. There is evidence to support each of these figures, and taxpayer’s bare assertion that adopting the appraiser’s disfavored method constitutes error is without merit. In light of our standard of review, we do not find this to be reversible error.

In the second part of its first argument, taxpayer claims the Commission failed to correct errors in Hester’s testimony identified in a report by Martin & Associates, experts hired by taxpayer. Taxpayer cites no case law, statutes, or appraisal guidelines in support of its argument; instead, we are asked to reverse the Commission to resolve a disagreement between appraisers hired by adversarial parties. This we decline to do. The Commission was in a far better position to weigh the credibility of the witnesses and their methods, and we defer to its judgment. The testimony of both Hester and members of Martin & Associates had support in the record, and “[i]n the absence of case law to the contrary, we cannot say that the Commission erred in adopting the position of certain experts over that of others.” In re Appeal of Westinghouse Electric Corp., 93 N.C. App. 710, 716, 379 S.E.2d 37, 40 (1989).

The third part of taxpayer’s first argument is that Hester ignored the “stigma” of bad business decisions and bankruptcy on the property in determining its appraisal value. The issue of this purported stigma is raised again in taxpayer’s third main argument on appeal, that “the Commission erred by failing to consider the stigma affecting the property as required by N.C. Gen. Stat. § 105-317.” Addressing these arguments together, we find them without merit.

Persons appraising a building have a statutorily imposed duty “to consider at least its location; type of construction; age; replacement cost; cost; adaptability for residence, commercial, industrial, or other [477]*477uses; past income; probable future income; and any other factors that may affect its value.” N.C. Gen. Stat. § 105-317(a)(2) (1997). Taxpayer claims the stigma of bankruptcy haunts this property and is a factor that affects its value, thus falling under the purview of G.S. § 105-317(a)(2). Taxpayer contends in its brief that Hester “offer[ed] his opinion that the stigma should not be considered in appraising the fee simple value of the property,” citing the following exchange in the transcript:

Q. Okay. But is it your opinion that this stigma is not a factor that should be considered in arriving at your estimate of value as of 1/1 of ’93?
A Well, I think technically speaking, if we’re going to look at fee simple we would look at this building without the stigma, outside the stigma. I can’t say that that’s what I’ve done. I think it’s in there.

(emphasis added). It appears to us from this testimony, then, that although Hester may have preferred to avoid considering the stigma of bankruptcy, he nevertheless considered it in his analysis. Hester cannot be faulted for failing to express in his testimony exactly how such a stigma can be quantified in light of the highly speculative nature of such an ethereal concept. Taxpayer’s contention that Hester ignored the impact of any stigma on the property is without merit.

Taxpayer directs us to no case in this state, and we have found none, which indicates that mismanagement of property by a business owner is a proper reason to lower the property’s tax value. We agree with Wake County that “any stigma resulting from the property owner’s business failure and subsequent bankruptcy taints the owner, not the property.” The focus of G.S. § 105-317(a)(2) is on the property itself and not the business acumen of the parties involved in the development of the property.

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Related

In Re the Appeals of the Greensboro Office Partnership
325 S.E.2d 24 (Court of Appeals of North Carolina, 1985)
In Re the Appeal of Westinghouse Electric Corp.
379 S.E.2d 37 (Court of Appeals of North Carolina, 1989)
In Re the Ad Valorem Valuation of Property of Pine Raleigh Corp.
128 S.E.2d 855 (Supreme Court of North Carolina, 1963)
In Re Appeal of Camel City Laundry Co.
472 S.E.2d 402 (Court of Appeals of North Carolina, 1996)
In Re the Appeal of Camel City Laundry Co.
444 S.E.2d 689 (Court of Appeals of North Carolina, 1994)

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517 S.E.2d 903, 134 N.C. App. 474, 1999 N.C. App. LEXIS 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-of-phoenix-ltd-partnership-of-raleigh-ncctapp-1999.