Jackson Local School Dist. Bd. of Edn. v. Belpar Sq. Assocs., Ltd.

2011 Ohio 1777

• Court: Ohio Court of Appeals
• Decided: April 11, 2011
• Docket: 2010 CA 00248
• Status: Published

Opinion

[Cite as Jackson Local School Dist. Bd. of Edn. v. Belpar Sq. Assocs., Ltd., 2011-Ohio-1777.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JACKSON LOCAL SCHOOL DISTRICT JUDGES: BOARD OF EDUCATION Hon. Sheila G. Farmer, P. J. Hon. John W. Wise, J. Appellant Hon. Julie A. Edwards, J.

-vs- Case No. 2010 CA 00248

BELPAR SQUARE ASSOCIATES, LTD., et al.

Appellees OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2009 CV 04493

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 11, 2011

APPEARANCES:

For Appellant For Appellee Belpar

ROBERT M. MORROW JOHN V. BOGGINS 1650 Lake Shore Drive, Suite 285 1428 Market Avenue North Columbus, Ohio 43204 Canton, Ohio 44714 Stark County, Case No. 2010 CA 00248 2

Wise, J.

{¶1} Appellant Jackson Local School District Board of Education appeals the

decision of the Court of Common Pleas, Stark County, which granted a tax valuation

appeal by Appellee Belpar Square Associates, Ltd. for a reduction in appraisal value

for a commercial property in the Belden Village area of Jackson Township. The

relevant facts leading to this appeal are as follows.

{¶2} The property at issue in this appeal is a multi-tenant commercial complex,

generally known as the Aston Park Professional Centre, located at 4670 Belpar Street

N.W. in Jackson Township, Stark County. The property was built in the early 1980s as

a retail center and was later converted to a multi-use format. The property consists of

three parts: the central Parcel No. 16-19651 (Parcel No. 1), as well as Parcel Nos. 16-

15892 and 16-15894 (Parcels 2 and 3).

{¶3} In 2008, the Stark County Auditor evaluated the combined value of the

property for tax purposes at $3,773,700.00. Appellee Belpar thereupon filed a

complaint with the Stark County Board of Revision “(BOR”) seeking a revaluation to the

sum of $2,100,000.00. Appellant Jackson Local School District Board of Education filed

a counter-complaint in support of the auditor’s valuation.

{¶4} On October 15, 2009, the BOR heard the complaint. At the hearing, Blair

Zimmerman, the property manager for Appellee Belpar, testified as to the decreased

occupancy rate and depressed rents in the area, and he submitted a letter-form

summary appraisal prepared by Charles G. Snyder, RM, MAI. In his letter, Snyder

opined that the value of the property was $2,100,000.00. This evidence was admitted

by the BOR. Stark County, Case No. 2010 CA 00248 3

{¶5} At the BOR hearing, Appellant Jackson Township School Board presented

no evidence in contradiction of Appellee Belpar’s evidence.

{¶6} The BOR issued a decision on November 6, 2009 which decreased the

total valuation to $3,420,900.00 (a reduction of $353,000.00).

{¶7} Appellee Belpar timely filed a notice of appeal to the Stark County Court of

Common Pleas on November 20, 2009. On the same day, Appellee Belpar filed a

motion to supplement the record with additional evidence.

{¶8} Appellant filed no response to appellee’s motion to supplement. However,

the trial court did not issue a ruling on the motion; therefore, on March 16, 2010,

appellee filed a renewed motion to supplement the record. The trial court granted same

on April 1, 2010.

{¶9} On April 19, 2010, appellant filed a motion for reconsideration of the order

to supplement the record, which the court denied on May 11, 2010. At no point did

appellant attempt to supplement the record with its own additional evidence in

opposition to appellee’s evidence. In the meantime, Snyder finalized his

comprehensive appraisal on May 10, 2010, using Direct Sales and Income

Capitalization Approaches. He concluded again that the fee simple market value of the

Aston Park Centre property was $2,100,000.00.

{¶10} On August 2, 2010, after consideration of the record and evidence,

including the supplemented evidence of the aforesaid full appraisal prepared by

Charles Snyder, the trial court issued a judgment entry ordering a reduction of the

combined value property to $2,100,000.00. Stark County, Case No. 2010 CA 00248 4

{¶11} On September 2, 2010, appellant filed a notice of appeal. It herein raises

the following two Assignments of Error:

{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING

SUPPLEMENTAL APPRAISAL EVIDENCE SINCE R.C. 5715.19(G) PRECLUDES

EVIDENCE THAT WAS NOT PRESENTED TO THE STARK COUNTY BOARD OF

REVISION FROM BEING CONSIDERED BY THE TRIAL COURT, WITHOUT GOOD

CAUSE SHOWN.

{¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DEPRIVING

APPELLANT JACKSON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION OF

THE OPPORTUNITY TO CONFRONT, CROSS-EXAMINE AND REFUTE THE

ADDITIONAL APPRAISAL EVIDENCE THAT WAS IMPROPERLY ALLOWED.”

I., II.

{¶14} In its First and Second Assignments of Error, which we will address

together, Appellant Jackson Board of Education contends the trial court erred and

abused its discretion by considering Appellee Belpar’s supplemental appraisal

evidence. We disagree.

{¶15} R.C. 5717.05 addresses procedures in an appeal from a decision of a

county board of revision to a court of common pleas. In Black v. Board of Revision of

Cuyahoga County (1985), 16 Ohio St.3d 11, 475 N.E.2d 1264, at paragraph one of the

syllabus, the Ohio Supreme Court held: “R.C. 5717.05 does not require a trial de novo

by courts of common pleas on appeals from decisions of county boards of revision.

The court may hear the appeal on the record and evidence thus submitted, or, in its

discretion, may consider additional evidence. The court shall independently determine Stark County, Case No. 2010 CA 00248 5

the taxable value of the property whose valuation or assessment for taxation is

complained of, or, in the event of discriminatory valuation, shall determine a valuation

that corrects such discrimination. The judgment of the trial court shall not be disturbed

absent a showing of abuse of discretion.”

{¶16} Pursuant to this independent review, the trial court “is not required to

adopt the valuation of any witness, but is instead vested with wide discretion to

determine the weight of the evidence and the credibility of the witnesses.” Security

Natl. Bank & Trust Co. v. Springfield City School Dist. Bd. of Edn. (Sept. 17, 1999),

Clark App.No. 98-CA-104, citing Murray & Co. Marina, Inc. v. Erie Cty. Bd. of Revision

(1997), 123 Ohio App.3d 166, 173, 703 N.E.2d 846, citing Strongsville Bd. of Edn. v.

Cuyahoga Cty. Bd. of Revision (1997), 77 Ohio St.3d 402, 408, 674 N.E.2d 696. The

independent judgment of the trial court is not to be disturbed absent a showing of

abuse of discretion. RDSOR v. Knox Cty. Auditor, Knox App.No. 08-CA-23, 2009-Ohio-

2310, ¶ 26.

{¶17} Appellant first argues the trial court failed to adhere to R.C. 5715.19(G),

which states as follows:

{¶18} “A complainant shall provide to the board of revision all information or

evidence within the complainant's knowledge or possession that affects the real

property that is the subject of the complaint. A complainant who fails to provide such

information or evidence is precluded from introducing it on appeal to the board of tax

appeals or the court of common pleas, except that the board of tax appeals or court

may admit and consider the evidence if the complainant shows good cause for the Stark County, Case No. 2010 CA 00248 6

complainant's failure to provide the information or evidence to the board of revision.”

(Emphasis added).

{¶19} Appellant thus maintains that the trial court should have disallowed

Snyder’s full appraisal May 2010, alleging the “good cause” requirement of R.C.

5715.19(G) was not demonstrated. Appellant directs us to CASA 94, L.P. v. Franklin

Cty. Bd. of Revision, 89 Ohio St.3d 622, 734 N.E.2d 369 Ohio, 2000-Ohio-3, in which

the Ohio Supreme Court determined that the BTA had erred because it accepted

realtor testimony “to amplify evidence previously submitted to, but not considered by

the BOR.” Id. at 624. The Supreme Court concluded that the BTA should have

excluded the realtor’s testimony because it did not pertain to any evidence or

information provided to the BOR and because the property owner [CASA] “did not

attempt to show good cause why it had not presented the evidence or information [the

realtor] testified about to the BOR.” Id. at 625.

{¶20} In the case sub judice, however, the record indicates that Appellee Belpar

filed a motion with the trial court on November 20, 2009, requesting the court entertain

“additional evidence as to the property evaluation.” Appellant did not respond to the

motion to supplement. As of March 16, 2010, the trial court had not ruled on the

motion; accordingly, appellee on that date renewed its motion to supplement,

requesting “the opportunity to present the testimony of Charles Snyder ***.” As noted in

our recitation of facts, supra, the trial court granted appellee’s renewed motion to

supplement the record on April 1, 2010, and thereafter denied appellant’s motion to

reconsider said decision. Appellant maintains that it should have at least been given

until April 5, 2010 to respond to appellee’s “renewed” motion to supplement the Stark County, Case No. 2010 CA 00248 7

evidence (such date being four days after the trial court actually granted appellee’s

motion).1

{¶21} However, as the trial court duly noted in its denial of appellant’s motion to

reconsider, appellant had never responded to appellee’s original motion to supplement

filed November 20, 2009. Having chosen not to object to appellee’s original request for

supplementation, we hold appellant cannot now claim that the trial court abused its

discretion in considering the full Snyder appraisal. Cf. Harper v. Harper, Franklin

App.No. 04AP-685, 2005-Ohio-3989, ¶ 19. We further decline to apply the plain error

doctrine to the case sub judice. See Goldfuss v. Davidson, 79 Ohio St.3d 116, 679

N.E.2d 1099, 1997-Ohio-401.

{¶22} Appellant secondly argues, on more general due process grounds, that

the trial court should have allowed appellant the opportunity to confront, cross-

examine, and attempt to refute the Snyder full appraisal.

{¶23} We note the Ohio Supreme Court has held: “In reviewing a board of

revision's valuation of property, the common pleas court should make its own

independent decision but is not required to conduct an independent proceeding. It

should reach its own decision without any deference to the administrative finding.

However, it should consider the administrative record, giving that record whatever

weight the court deems appropriate, even if the court accepts additional evidence.”

1 This date is based on two grounds, according to appellant. First, the trial court had set a briefing schedule for the parties, utilizing an April 5, 2010 deadline for appellant to file its trial brief. Second, as appellant argued in more detail in its motion to reconsider before the trial court, a response date of April 5, 2010 was warranted via an application of Civ.R. 6(E) and Stark County Loc.R. 10.03. Stark County, Case No. 2010 CA 00248 8

Park Ridge Co. v. Franklin County Bd. of Revision (1987), 29 Ohio St.3d 12, 504

N.E.2d 1116, paragraph one of the syllabus.

{¶24} In the case sub judice, appellant did not assert to the trial court that it had

available an alternative appraisal, other than the original auditor’s valuation before the

BOR. In conjunction with our above conclusion as to the applicability of waiver under

these circumstances, we hold the trial court did not abuse its discretion in the manner it

reviewed the evidence and reached a determination of valuation under R.C. Chapter

5717.

{¶25} Appellant’s First and Second Assignments of Error are therefore

overruled.

{¶26} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is affirmed.

By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.

___________________________________

JUDGES JWW/d 0329 Stark County, Case No. 2010 CA 00248 9

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JACKSON LOCAL SCHOOL DISTRICT : BOARD OF EDUCATION : : Appellant : : -vs- : JUDGMENT ENTRY : BELPAR SQUARE ASSOCIATES, : LTD., et al. : : Appellees : Case No. 2010 CA 00248

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

Costs assessed to Appellant Jackson Board.

JUDGES