Musto v. Lorain Cty. Bd. of Revision (Slip Opinion)

2016 Ohio 8058, 71 N.E.3d 279, 148 Ohio St. 3d 456
CourtOhio Supreme Court
DecidedDecember 13, 2016
Docket2014-1771
StatusPublished
Cited by22 cases

This text of 2016 Ohio 8058 (Musto v. Lorain Cty. Bd. of Revision (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Musto v. Lorain Cty. Bd. of Revision (Slip Opinion), 2016 Ohio 8058, 71 N.E.3d 279, 148 Ohio St. 3d 456 (Ohio 2016).

Opinions

Per Curiam.

{¶ 1} In this real-property-valuation case, appellant, Cynthia M. Musto, challenges a decision of the Board of Tax Appeals (“BTA”) that affirmed the decision of the Lorain County Board of Revision (“BOR”) to retain the county auditor’s valuation of her property for tax year 2012.

{¶ 2} Musto argues that the BTA’s decision was unlawful and unreasonable in three respects. First, she contends that the BTA should have granted a continuance when her only scheduled witness, a certified appraiser who conducted an appraisal of the property in 2014, did not show up for the BTA hearing. Second, she challenges the BTA’s valuation decision, arguing that the evidence that she produced made it unreasonable for the BTA to retain the auditor’s valuation and that the BTA had a legal duty to independently determine a value [457]*457based on the evidence that she presented. Finally, Musto argues that the BTA should have disqualified counsel for the BOR and the auditor because he was also a member of the BOR hearing panel.

{¶ 3} For the reasons explained below, we reject Musto’s claims and affirm the BTA’s decision.

FACTS

{¶ 4} Musto owns and occupies the subject property, which is located at 16449 Boone Road in Lorain County. It spans 10.01 acres and has been improved with a 4,094 square-foot single-family home, a pole barn, and an indoor horse arena.

{¶ 5} In tax year 2012, a sexennial reappraisal year in Lorain County, the county auditor valued the property at $547,260. Musto filed a complaint with the BOR requesting a reduction in value to $405,000.

BOB proceedings

{¶ 6} A two-member BOR hearing panel, consisting of the county treasurer and Jack Kilroy, a representative of the county auditor, heard Musto’s complaint. Musto’s husband testified about the subject property and nearby properties that had recently been sold, and he responded to questions from the BOR panel. He opined that the property’s value was $405,000 as of the tax-lien date. And Musto’s attorney submitted a document providing information about the property and identifying two recent “[njeighborhood [sjales” and two current “Neighborhood [IJistings.”

{¶ 7} Finally, Musto introduced an appraisal report that had been prepared for financing purposes in 2009. James A. Malloy, a certified Ohio-licensed appraiser, evaluated the property for Third Federal Bank. He relied on the sales-comparison approach, identifying three comparable sales. After making adjustments, Malloy opined a value of $405,000 as of January 30, 2009. The report was certified by the appraiser, but Malloy did not testify before the BOR panel.

{¶ 8} On August 7, 2013, the BOR issued a decision retaining the auditor’s valuation for tax year 2012. The BOR concluded that Musto had presented insufficient evidence to support a reduction in value.

BTA proceedings

{¶ 9} Musto appealed to the BTA, which scheduled a hearing for 9:00 a.m. on March 4, 2014.

[458]*458 Preliminary matters

{¶ 10} Musto planned to present the testimony of Elizabeth Caldwell at the BTA hearing. Caldwell is an Ohio-licensed appraiser of residential real estate who had appraised the property on February 13, 2014. At the beginning of the March 4 hearing, Musto’s counsel informed the BTA examiner that Caldwell was “running behind” and moved to “continue th[e] hearing to a later date and time.” He also asked the hearing examiner to keep the record open for ten days so that he could introduce any future evidence of good cause for Caldwell’s absence. Alternatively, Musto’s counsel sought permission for Caldwell to participate by telephone.

{¶ 11} Counsel for the auditor and the BOR opposed all three requests, and the hearing examiner denied them, emphasizing that the parties had had almost six months’ advance notice of the hearing date. The examiner also explained that the BTA permits telephonic hearings only for matters on its small-claims track, which did not apply to Musto’s case.

{¶ 12} Musto next objected to “Mr. Kilroy’s attendance in representation of the Board of Revision[,] County Auditor},] and the County Appellees in general at this hearing as he was a neutral member of the BOR tribunal in the decision below.” Musto’s counsel stated that he was not asking the hearing officer to disqualify Kilroy but was only “noting an objection [for] the record.”

{¶ 13} In response, Kilroy argued that his representation was consistent with his role on the BOR panel. Under R.C. 5715.02, three individuals serve on a county board of revision: the county treasurer, the county auditor, and a member of the board of county commissioners. In Musto’s case, the county auditor exercised his statutory authority to appoint a qualified employee — Kilroy—“to serve in [his] place and stead on” the board of revision. Id.

{¶ 14} Kilroy then explained that although he is employed by the auditor, he is also an assistant prosecutor for Lorain County, for the limited purpose of representing the county auditor and the BOR. The county prosecutor is the legal adviser of all county officers and boards, including the BOR, and therefore has a statutory duty to “prosecute and defend all suits and actions” to which the BOR is a party. R.C. 309.09(A) (noting exceptions established in R.C. 305.14); see also State ex rel. Trumbull Cty. Bd. of Elections v. Trumbull Cty. Bd. of Commrs., 11th Dist. Trumbull No. 2009 TR 85, 2010-Ohio-2281, 2010 WL 2026075, ¶ 19.

{¶ 15} The BTA overruled Musto’s objection, and Kilroy represented the auditor and the BOR at the hearing. Eight days after the hearing, Musto filed a written motion to disqualify Kilroy. She requested a new merits hearing and, alternatively, asked the BTA to remand the matter to the BOR. The BTA denied the motion on September 24, 2014.

[459]*459 Evidence of value

{¶ 16} Musto did not present any witnesses at the BTA hearing. She asked the BTA to consider the statutory transcript from the BOR proceedings, which included Malloy’s appraisal report.

{¶ 17} Musto also introduced Caldwell’s certified appraisal report without accompanying testimony. The report indicated that Caldwell had inspected the property, identified its highest and best use, and analyzed market conditions. In the report, she identified four sales of comparable properties (two of which had barns and an indoor riding arena), made adjustments, and arrived at a valuation of $450,000 as of the tax-lien date.

{¶ 18} The auditor and the BOR did not introduce any evidence, but their counsel indicated that he would have liked to question Malloy and Caldwell about their methodologies. Musto’s counsel said that Caldwell could be there in less than two hours and would be available to answer any questions then. But the auditor and the BOR did not want to prolong the hearing, and the hearing examiner noted that she had already denied Musto’s requests regarding Caldwell at the outset of the hearing.

The BTA’s decision

{¶ 19} On September 24, 2014, the BTA issued a decision affirming the BOR’s valuation.

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Cite This Page — Counsel Stack

Bluebook (online)
2016 Ohio 8058, 71 N.E.3d 279, 148 Ohio St. 3d 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musto-v-lorain-cty-bd-of-revision-slip-opinion-ohio-2016.