IN THE SUPREME COURT OF OHIO

Board of Education of theWorthington City Schools,

Appellee, Case No. 08-2365vs.

Franklin County Board of Revision,Franklin County Auditor, and Bob-O-Link Golf Course, Ltd. NKA WeberSisters Enterprises, Ltd.,

Appellants.

MERIT BRIEF OF APPELLANT, WEBER SISTERSENTERPRISES, LLC.

For the Appellant: Wayne E. Petkovic (0027086)840 Brittany DriveDelaware, OH 43015740-362-7729

For the Board Of Edn.:

O Um us, -yF oI C'DU rtr n-„_C 1 b OH 432300 East, Broad St. AI` 11 tl ti

Mark H. GillisRich & Gillis

614-228-5822 SUi^RF CMF 0®.,^pRT p^Hln

For the County: William Stehle, Assistant Prosecutor373 South High StreetColumbus, OH 43215614-462-7473

For the Tax Commissioiner: Richard Cordray, Atty. General30 East Broad StreetColumbus, OH 43215

TABLE OF CONTENTS

Statement of Facts

Proposition of Law:Any finding of fact by the Board of TaxAppeals must be supported by evidenceand an appellant before the BTA has anAffirmative burden of proof.

Conclusion

Certificate of Service

Appendix

Notice of Appeal

BTA Decision

Page 1

Page 3

Page 8

Page 8

A-1

A-5

The Royal Group LimitedLiability Co. v. Cuyahoga Cty. Bd.of Revision, et al.,(March 21, 2003),BTA Case No. 2003 A-192, unreported A-11

PAGE i

AUTHORITIES CITED

Bedford Bd of Edn. v. Cuyahoga Cty.Bd. of Revision (2007),115 Ohio St 3d 449,2007-Ohio-5237 Page 4

Black v. Cuyahoga Cty. Bd of Revision(1985), 16 Ohio St. 3d 11 Page 4

Cincinnati School Dist. Bd of Edn. v.Hamilton Cty. Bd of Revision (1997),78 Ohio St. 3d 325, 677N.E. 2d 22 Page 5

Columbus City School Dist. Bd of Edn.v. Franklin Cty. Bd of Revision (2001),90 Ohio St 3d 564 Page 3,5

Columbus Bd OfEdn. v. Franklin Cty.Bd of Revision (1996), 76 Ohio St 3d 13 Page 4

Cummins Property Services, LLC. v.Franklin Cty. Bd. of Revision 117 OhioSt 3d 516, 2008-Ohio-1473 Page 7

Hawthorn Mellody, Inc. v. Lindley (1981)65 Ohio St. 2d 47, 417N.E. 2d 1257 Page 3

Howard v. Cuyahoga Cty. Bd of Revision(1988) 37 Ohio St 2d 195, 524 N.E. 2d 887,889 Page 3

Simmons v. Cuyahoga Cty. Bd of Revision(1988), 81 Ohio St 3d 47, 689 N.E. 2d 22 Page 5

BTA: The Royal Group Limited Liability Co.v. Cuyahoga Cty. Bd. Of Revision, et al.(March 31, 2003), BTA Case No. 2003-A-192,unreported, in appendix Page 7

PAGEII

STATEMENT OF FACTS

The subject property consists of two 7,500 square foot buildings

located at 171-179 East Campus View boulevard, Worthington, Ohio and is

designated as permanent parcel 610-263603 on the records of the Franklin

County Auditor. The property was subject to a 1031 tax free exchange based

on a full occupancy that never materialized and a rent structure that was not

achievable in the open market. Two tenants never took occupancy and that

leased space was not even built out and was vacant on transfer. One tenant,

Maisha, Inc., did not pay rent, and an eviction suit was brought in Common

Pleas Court in Franklin County { Case CVH09-12431, Judge Sheward }

wherein past due rent in excess of 150 thousand dollars was sought but due

to the bankruptcy of the lessee who had no assets, no lost rent was ever

recouped. The evidence presented to the BOR, both financial and through

testimony of one of the principals, clearly indicated that the exchange

"price" clearly did not reflect market value.

For the tax year in►mediately preceeding the matter before the BTA,

the Appellant Board of Education filed a complaint seeking to have the

value set at the exchange amount. The BOR did not increase the value and

the BOE did not further appeal, although the parties to the present matter

were the same. The BOE then filed a second complaint, on the same

transaction and against the same parties ( although the limited partnership

name was changed ) with regard to the issue of valuation when it chose not

to pursue the previous rejection of its increase complaint. On the second

complaint before the BOR, the BOE presented no evidence of

value other than a conveyance statement, which was rejected by the BOR as

not indicative of the value on the tax lien date. As such, the appellant BOE

had two separate and distinct opportunities to present evidence of value

•^.,with regard to the very same transaction, but chose not to do so. Moreover,

with regard to its first complaint, the BOE did not appeal the rejection by

the BOR of the transfer, and it became final by operation of law with regard

to the tax year inunediately prior to that involved herein.

On its appeal to the BTA, the Board of Education chose to waive its

right to a hearing and rest on the record before the board of revision. Thus,

on two occasions, the Board of Revisibn rejected the transfer price as

definitive of the fair market value of the property, and the Board of

Education presented no testimony or evidence contrary to the findings of the

Board of Revision.

c

,^-

LEGAL ARGUIVIENT:

PROPOSITION OF LAW 1:

ANY FINDING OF FACT BY TUE BOARD OF TAX APPEALS MUSTBE SUPPORTED BY EVIDENCE AND AN APPELLANT BEFORE THEBTA HAS AN AFFIRMATIVE BURDEN OF PROOF.

In Columbus City School Dist. Bd ofEdn. V Franklin County

Bd. Of Revision (2001), 90 Ohio St 3d 564, the Court stated stated at page

3: " We cannot affirm a determination of value by the BTA that is not

supported by sufficient probative evidence".

Any finding of fact by the BTA or determination of substantive merits

must be based on evidence Hawthorn Mellody, Inc. v. Lindley (1981),

65 Ohio St. 2d 47, 417 N.E. 2d 1257, and the BTA is required to state what

evidence it considered relevant in reaching its determination Howard v.

Cuyahoga Cty. Bd. Of Revision (1988) 37 Ohio St. 195, 524 N.E. 2d

887, 889.

In this instance, the Board of $ducation (BOE) , as the appellant, had

an affirmative duty to present evidence in support of its appeal and chose

not to do so. The BTA has the duty to independently review the record and

fashion a decision on the existing information of record when a party

decides not to present evidence to the BTA. see: Columbus Bd. Of Edn. Y.

Franklin Cty. Bd. of Revision (1996), 76 Ohio St. 3d 13, Black v.

Cuyahoga Cty. Bd. ofRevision (1985), 16 Ohio St. 3d 11.

Suffice it to say it is error for the BTA to ignore the auditor's

original valuation when the taxpayer has presented sufficient evidence to

the BOR to justify its position contrary to a complaint filed by a board of

education seeking an increase. Bedford Bd. of Edn. Y. Cuyahoga Cty. Bd.

of Revision (2007), 115 Ohio St 3d 449, 2007-Ohio-5237.

The BOB had an affirmative duty to present evidence of the fair

Parket value of the subject property. After having filed a complaint based

on the IRS section 1031 exchange, and the BOR having rejected that

transfer as indicative of the fair market value for the tax year 2003, the BOE

filed a complaint fro the tax year 2004 which was in the same triennial

period. The BOE, as stated did not appeal the first BOR decision which it

could have and would have been required to present evidence. Instead, the

BOE sought to relitigate the issue for 2004 when the BTA would have had

jurisdiction over 2003, 2004 and 2005 if the first BOR decision had been

appealed. Suffice it to say, the BOE had a duty , as appellant before the

BTA,to prove a value for the subject property on appeal. Cincinnati School

Dist. Bd. Of Edn. Y. Hamilton Cty. Bd. Of Revision (1997), 78 Ohio St. 3d

325, 6771V. E. 2d 1197, Simmons v. Cuyahoga Cty. Bd: Of Revision

(1988), 81 Ohio St. 3d 47, 49, 6891V.E. 2d 22, 24. The record was clear

that the property was not transferred on the open market, and that

subsequent attempts to sell the property brought low offers from potential

buyers. All of the evidence before the BOR was ignored by the BTA in favor

of its simplistic approach that whenever a transfer takes place there is no

need to look further. Although the BTA did mention, at page 3 of its

decision that the appellant BOE had the burden of proof, it then shifted the

;,burden of proof to the taxpayer.

The BTA completely ignored the court's instruction that where "

there is no evidence from which the BTA can independently determine

value, it may approve the board of revision's value. Columbus City School

Dist. Bd. Of Edn. v. Franklin Cty. Bd. Of Revision (2001), 90 Ohio St 564.

In Columbus, supra, both parties waived their right to a hearing

before the BTA, and the Court noted, at page 4, that the burden is thus on

the appellant, whether a taxpayer or board of education. (Id. At page 4).

Notwithstanding the totality of the evidence provided to the BOR by

the taxpayer, in the form of income and expense information and direct

testimony by a sworn witness who was a principal, the BTA chose to ignore

the record instead of making " an independent determination of value".

The auditor placed a value on the subject property for the tax year in

issue which value was contested by the BOE by virtue of the complaint it

filed. The BOR found no evidence provided by the BOR which would cause

the BOR to increase the value to that sought by the board of education. On

its appeal to the BTA, the board of education provided no evidence and

waived its right to a hearing ( at which it would have had the burden of

proof). The totality of the record clearly demonstrated that the transfer of the

property involved a situation wherein material averments of fact, ie.

tenancy, rent, leases, etc., all provided by the taxpayer, militated against the

use of the transfer as evidence of value. There is a fine line between caveat

emptor and material misrepresentation and this is and was clearly

established in the record before the BOR. On appeal, the BOE did nothing

and relied on a conveyance form, DTE form 100, and a limited warranty

deed. These documents were found by the auditor, in the first instance, and

the BOR following a hearing on the BOE complaint to not be disparities of

the issue of the fair market value of the property. On appeal, the record

remained the same as the BOE waived its right to present evidence before

the BTA and instead relied on 2 documents that had been rejected as

dispositive by the BOR on two separate occasions.

-6-

In The Royal Group Limited Liability Company vs. Cuyahoga

County Board of Revision, et al. (March 21, 2003), BTA Case No. 2003 A-

192 , unreported, the BTA held that the merits of. a determination that

became final by operation of law ( in that instance a previous BTA

decision), could not be relitigated in a second proceeding and stated: "

Thus, the board's prior decision is applicable and controlling here under the

doctrine of res judicata, which includes collateral estopple." ( Id at 4).

The statutory transcript clearly indicates that the subject property was

never on the open market and that the "buyer" was not knowledgeable with

regard to the local real estate market. ( see: BTA decision vacated). Thus

two necessary facets of "arms-length" are missing. The record is also

patently clear that the inducements for the exchange were false.

In Cummins Property Services, LLC. Y. Franklin Cty. Bd of

Revision April 3, 2008), 117 Ohio St. 3d. 516, 2008-Ohio-1473 , the

Supreme Court clearly indicated that the use of a sale "price" is prima facie

evidence that can be refuted by a showing that there was a change in the

property and that market changes and other factors make the sale price

unreliable. In this instance the changes are clearly shown by the statutory

transcript. The transfer price was clearly rebutted and as such, the "

rebuttable presumption" with regard to transfer "price" does not apply. ( see:

Cummins, supra, at page 14-15).

Herein, the BTA has the ill conceived notion that all transfers are

absolute and that prima facie becomes absolute notwithstanding the record

to the contrary. Does the BTA assume that on two separate occasions the

BOR cavalierly ignored the transfer?

Additionally, the appellant BOE has produced no evidence to

controvert the decision of the Franklin County Board of Revision, and there

is nothing in the record to refute the decision of the BOR.

It is respectfully submitted that the determination of the Franklin

County Board of Revision be reinstated and the Decision and Order of the

BTA be reversed.

Wayne 9. Petkovic, Counsel for Appellee

Certificate of Service

A copy of the foregoing Brief was served upon all counsel of record byregular U.S. Mail, postage prepaid, this sixth day of April, 2009.

8

IN THE SUPREME COURT OF OHIO TAX AFi';„

2008 QF.C I I AM 10; 4

Board of Education of theWorthington City Schools.,

Appellant-Appellee, CASE NO. ® 8-236 ^-^

V.

Frankiin County Board of Revision,Franklin County Auditor, and Bob-OLink Golf Course, Ltd. NKA WeberSisters Enterprises, LTD.,

Appellees-Appellants.

Appeal from Board ofTax Appeals Case Number2006-Z-225

NOTICE OFAPPEAL OF WEBER SISTERSENTERPRISES, LTD.

For the Appellant:

For the County:

Wayne E. Petkovic (0027086)840 Brittany DriveDelaware, OH 43015

Paul StickelAssistant Prosecutor373 South High StreetColumbus, Ohio 43215

For the Board of Education Mark H. GillisAppellee: Rich , Crites & Dittmer

Suite 300, 300 East Broad StreetColumbus, Ohio 43215

For the ^'am.mi,^ioner•

^^LEDM 11 2006

CLERK OF COURTSUPREME COURTQFOHID

Attorney General of Ohio30 East Broad StreetColumbus, Ohio 43215

A evl

Appellant, Weber Sisters Enterprises, Ltd., fornierly known as

Bob-O-Link Golf Course, Ltd. , hereby gives notice of its appeal from a

final order of the Ohio Board of Tax Appeals in the matter ofBoard of

Education of the Worthington City Schools, v. Franklin County Board of

Revision, Franklin County Auditor and Bob-O-Link Golf Course, Ld,

Ohio Board of TaxAppeals Case number 2006-H-381 on the Docket of the

Ohio Board of Tax Appeals.

The final order, hereby appealed pursuant to the pertinent provisions

of section 5717.04, was journalized by the Board of Thx Appeals on

November 12, 2008 and a true copy of the final order is appended hereto

and made a part hereof .

Appellant, Weber Sisters Enterprises, Ltd. [ formerly known as

Bob-O-Link Golf Course, Ltd. ] states that the final order of the Board of

Tax Appeals is unlawful and erroneous in the following respects:

1. The final order is unlawful and erroneous in that the Board of TaxAppeals determ.ination is contrary to Dayton-Montgomery Cty. PortAuth.V Montgomery Cty. Board of Revision;113 Ohio & 3d 28I, 2007-Ohio-1948.

2. The final order is erroneous and unlawful in that it reversed adetermination of the Franklin County Board of Revision without evidencehaving been presented to the BTA by the Appellant board of education.

3. The final order is unlawful and erroneous in that the BTA shifted theburden of proof from the Appellant board of education to the taxpayer and

county appellees.

4. The final order is erroneous and unlawful in that it is contrary to theCourt's decision in Simmons v. Cuyahoga Cty. Bd Of revision (1988), 81Ohio SSt. 3d 47.

5. The BTA failed to recognize that the doctrine of collateral estopplewas applicable to the matter in that the use of the 2003 transfer as evidencewas rejected in a previous complaint which, not having been appealed,became fnal by operation of law.

6. The decision is unlawful and erroneous in that the appeal to the BTAwas a second filing within the same triennium and therefore prohibited bysection 5715.19 O.R.C.

7. The determination of the BTA is unlawful and erroneous in that itpurported to make a de novo determination of the value of the propertywithout probative evidence as to its conclusion when contrary evidenceupon which the board of revision made its determination was of record andthus violated the principle stated by the Court in Coventry Towers, Inc. v.Strongsville (1985),18 Ohio St 3d 122 that any such review by the BTA beupon the preponderance of the evidence.

8. The BTA decision is unreasonable and unlawful in that it ignores thedictates of Cleveland Bd Of Edn. Y. Cuyahoga Cty. Bd Of Revision(1994), 68 Ohio St 3d 336; Crow v. Cuyahoga Cty. BiL OfRevision(1990), 50 Ohio St 3d 55; Mentor Exempted Village Bd Of Edn. VLake GYry. Bd Of Revision (1988). 37 Ohio St 3d 318.

9, The BTA unlawfully placed the burden of persuasion on taxpayerwho was an appellee contrary to Springfield Local Bd Of Edn. T'. SummitCty. Bd. Of Revision (1994), 68 Ohio ,Sk 493.

A • 3

WfIEREFORE, Appellant respectfully requests the Court reverse

the unlawful and unreasonable,final order of the Board of Tax Appeals.

Wayne E.VPetkovic (0027086)Attorney for Appellant taxpayer840 Brittany DriveDelaware, Ohio 43015Phone: 740-362-7729Fax: 740-362-4136

CERTIFICATE OF SERVICEA copy of the foregoing was served upon counsel for the county by certifiedmail #7005 0390 00019567 1485; upon counsel for the Tax Commissionerby certified mail 7005 0390 0001 9567 1492; and upon counsel for theBoard of Education by certifieomail 7005 0390 0001 9567 1508 thiseleventh day of December,

Wayne lV. PetkovicAttorney for Appellant

^

OWO BOARD OF TAX APPEALS

Board of Education of theWorthington City Schools,

Appellartt,

CASE NO. 2006-II 381

¢2EAL PROPERTY TAX)

DECISION AND ORDERvs.

Franklirl. County Board of Revision,Franklin County Auditor, andBolrO-Link Golf Course, Ltd.,

Appellees.

APPEP.[tANCES:

For ft Appellant Bd. of Edn. - Rich, Crites & Dittmer, LLCMark H. 0illis300 East Broad Sheet, Suite 300Columbus, Ohio 43215

For the County Appellees - Ron O'BrienFranklin County Prosecuting AttorneyWilliam StebleAssishant Prosecuting Attorney373 South High Street, 20s' FIColumbus, Ohio 43215

For the Appellee - Wayne E. Petkovic, Esq.Property Owner 840 Brittany Drive

Delaware, Ohio 43015

Entered November 12, 2008

Ms. Margulies, W. Eberhart, and Mr. Dunlap concur.

This cause and matter comes to be considered by the Board of Tax

Appeals upon a notice of appeal filed by appellant Board of Education of the

Worthington City Schools ("BOE")'from decisions of appellee, Franklin County

Board of Revision (`BOR").

This appeal involves the taxable value of real property located in the

Worthington City Schools taxing district and further identified as parcel number 610-

263603. The contested 4-acre parcel is situated in Franklin County and has been

improved with a retail shopping plaza, consistmg of two 7,500-square-foot buildings.

Constmctton of the subject's improvements was completed at or about the time the

subject was purchased on May 14, 2003 by Bob-O-Lirilc Golf Course, T.,td. ("property

owner") for the amount of $4,175,000.' Statutory transcript ("S.T.") at Ex. 12.

The value of the subject parcel for 2004 and 2005, as originally assigned

by the Franklin County Auditor ("auditor"), is $2,680,000. The BOE filed a complaint

with the BOR on February 18, 2005, asserting that value for tax year 2004 should be

increased to equal the transfer price of $4,175,000. At the February 22, 2006 hearing

before the BOR, the property owner's agents testified that the sale should not be

viewed as evidence of the property's value because the sale was arranged for 1031-

exchange tax purposes, the purchase was made based on full tenant occupancy that

never materialized, and the buyer was not knowl.edgeable about the local property

market. S.T. at Ex. 12. The property owner's agents also testified that an attempt to

resell the subject for $3.9 million failed when the prospective buyer's September 2005

appraisal valued the property at $3.2 million. Id.; S.T. at Ex. S. Following the hearing

before the BOR and its consideration of th6 evidence presented on behalf of the BOE

and the property owner, the BOR decided to maintain the auditor's values. In rejecting

the May 2003 sale price, the BOR specifically cited the property owner's lack of

1 The property owner's name apparently changed to Weber Sister Enterprises, Ltd. on March 9, 2005.

2

knowledge of the local market, the failed 2005 resale attempt, and the subjeot's loss of

tenants after the 2003 purchase. S.T. at Ex. 12.

The BOE appeals the BOR's determination of value and contends that

the May 2003 sale constitutes a valid, recent, arm's-length sale, and, as such, the

$4,175,000 transfer price provides the best evidence of the value of the subject

property as of January 1, 2004 and January 1, 2005. For the reasons that follow, we

agrce.

This matter is submitted to the Board of Tax Appeals upon the notice of

appeal, the statutory transcript certified to this board by the BOR, and the evidentiary

hearing before this board? The parties also filed briefs in support of their arguments.

We begin our review of this matter by noting that a party who asserts a

right to an increase or decrease in the value of real property has the burden to prove the

right to the value asserted. Cleveland Bd of Edn. v. Cuyahoga Cty. Bd of Revision

(1994), 68 Ohio St3d 336; Crow Y. Cuyahoga Cty. Bd of Revision (1990), 50 Ohio

St.3d 55; Mentor Exempted Trllage Bd. of Edn. v. Lake Cty. BtX of Revision (1988), 37

Ohio St.3d 318. Consequently, it is incumbent upon an appellant challenging the

decision of a board of revision to come forward and offer evidence that demonstrates

its right to the value sought. Cleveland Bd of Edn., supra.; Springfield Local Bd of

z Although notified of this board's July 11, 2007 he3l,;ng, the property owner was not present. Wesubsequently granted the property owner's motion for reconsideration and vacated our November 21,2007 decision and order. Bd ofEdm of the Worthington City Schools v. F}anklin Cty . Bd ofRevision(Interim Order, Dea 10, 2006), BTA No. 2006-H-381, unreported. Through a May 20, 2008 interimorder, we then set a new hearing to allow the property owner the opportunity to present evidence.However, the property owner's counsel waived that hearing.

3

Edn. v. Summit Cty. Bd. ofRevision (1994), 68 Ohio St.3d 493. Once an appellant has

presented competent and probative evidence of true value, other parties asserting a

different value then have a corresponding burden of providing sufficient evidence to

rebut the appellant's evidence. Springfleld Local Bd of ECIn., supra; Mentor Exempted

Village Bd of E'dn., supra. Accordingly, this board must proceed to examine the

available record and to determine value based on the evidence before it. Coventry

Towers, Inc. v. Strongsville (1985), 18 Ohio St.3d 120; Clark v. Glander (1949), 151

Ohio St 229. In doing so, we will deternvne the weight and credibility to be accorded

to the evidence presented. Cardinal Fed. S.& L. Assn. v. Cuyahoga Cty. Bd of

Revision (1975), 44 Ohio St.2d 13.

As we review the statutory transcript certif ed to this board by the BOR,

we note the BOE presented copies of a real property conveyance fee statement and

limited warranty deed evidencing the transfer of the subject property on May 14, 2003

for the amount of $4,175,000.3 S.T. at Ex 8.

R.C. 5713.03 provides, in pertinent part, that:

"In determining the true value of any tract, lot, or parcel of realestate under this section, if such tract, lot, or parcel has been thesubject of an arm's length sale between a willing seller and awilling buyer within a reasonable length of time, either before orafter the tax lien date, the auditor shall consider the sale price ***to be the true value for taxation purposes."

3 We find evidence of the subject's sale witliln eight months of the 2004 tax lien date is su8icientlyrecent for tax valuation purposes. See R.C. 5713.03; IBllicvd City School blst Bd ofEdn. v. FtanklinCty. Rd ofRevision (1990), 53 Ohio St3d 57; Bd ofEdn, for Orange City School Disz v. Cuyahoga

Cty. Rd of Revision (May 17, 2002), BTA Nos. 2000-R-880, et seq., um-eported; Equity Sn"ongsville

H. v. Cuyahoga Cry. Bd ofRevision (Feb. 2, 1996), BTA Nos. 1994-M-163, et seq., uureported.

4

a ^f

As the party asserting that the valuation determined by the BOIt should

be increased, the BOE bears the burden of proving that the value it alleges should be

the true value. The BOE met that burden by introducing documents establishing that

the property sold on May 14, 2003 for the.amount of $4,175,000. Cleveland

Municipal School Dist. Bd of Edn. v. Cuyahoga Cty. Bd of Revision, 107 Ohio St 3d

250, 252, 2005-Ohio-6434. It is well established that when property has been the

subject of a recent arm's-length sale between a willing buyer and a willing seller, the

sale price of the property shall be the true value for taxation purposes. Dublin City

Schools Bd of Edn. v. Franklin Cty. Bd of Revision, 118 Ohio St3d 45, 2008-Ohio-

1588; Rhodes v. Hamilton Cty. Bd of Revision, 117 Ohio St3d 532, 2008-Ohio-1595;

Cummins Property Servs., L.L.C. v. Franklin Cty. Bd of Revision, 117 Ohio St.3d 516,

2008-Ohio-1473; Berea City School Dist. Bd of Edn. v. Cuyahoga Cty. Bd. of

Revision, 106 Ohio St.3d 269, 271-272, 2005-Ohio-4979; Zazworsky v. Licking Cty.

Bd of Revision (1991), 61 Ohio St.3d 604; Conalco v. Bd. of Revision (1977), 50 Ohio

St.2d 129, at the syllabus.

Although the presumption exists that the sale price is the best evidence

of true value, that presumption may be rebutted where the sale is not an arm's-length

sale. Cleveland Municipal School Dist. Bd of Edn., supra, citing Lakeside Ave. Ltd.

Partnership v. Cuyahoga Cty. Bd of Itevision (1996), 75 Ohio St.3d 540, 544.

However, the property owner presented no competent or probative evidence

challenging the arm's-length nature of the May 2003 sale before either the BOR or this

board to rebut the presumption that the sale price is tbe best evidence of value. While

4 , 4

the property owner's attorney argued before the BOR that the sale was made for tax

purposes, no evidence was presented regarding how the alleged 1031 like-kind

exchange affected the arm's-length nature of the transaction. Walters v. Knox Cry. Bd

of Revision (1989), 47 Ohio St.3d 23. Likewise, we do not find the property owner's

evidence submitted before the BOR to be probative. The property owner's agents

testified as to their laolc of knowledge of the local market, their inabiliiy to resell the

subject based on a September 2005 appraised value, and the subject's loss of tenants

after the 2003 purchase. However, this testimony does not rebut the arm's-length

nature of the sale. Id. Consequently, without evidence to controvert the validity of the

arm's-length nature of the May 2003 sale, we must conclude that the best evidence of

the property's true value for taxa.tion purposes is the sale price. Berea, supra

Accordingly, based upon the preponderance of competent and probative

evidence before this board, the true value of the subject parcel as of January 1, 2004

and January 1, 2005 shall be as foIIows:

TRUE VALUE TAXABLE VALUELAND $1,745,900 $ 611,065BUILDING 2 429100 $ 850,185TOTAL $4,175,000 $1,461,250

The Auditor of Franklin County is hereby ordered to cause his records to

reflect the value determined herein for the subject real property and to assess the same

in accordance therewith as provided by law.

ohiosearabkeybta

6

, A4 stZ

OHIO BOARD OF TAX APPEALS

The Royal Group Limited Liability )Company, )

)Appellant, )

)vs. )

)Cuyahoga County Board of Revision, )Cuyahoga County Auditor, and Parma City )School District Board of Education, )

)Appellees. )

CASE NO. 2003-A-192

(REAL PROPERTY TAX)

DECISION AND ORDER

APPEARANCES:

For the Appellant - Richard E. Herthneck Co., LPARichard E. Herthneck2020 Center Ridge Road, Suite 304Rocky River, Ohio 44116

For the CountyAppellees

For the AppelleeBd. of Edn.

Entered March 21, 2003

William D. MasonCuyahoga County Prosecuting AttorneyTimothy J. KollinAssistant Prosecuting AttorneyCourts Tower - Justice Center1200 Ontario StreetCleveland, Ohio 44113

Taft, Stettinius & Holfister, LLPRobert A. Brindza3500 BP Tower200Public SquareCleveland, Ohio 44114-2302

Mr. Johnson, Ms. Jackson, and Ms. Margulies concur.

A OR

Pursuant to the decision in Cleveland Elec. Illum., supra, the 30-day

appeal period established by R.C. 5717.01 begins upon the last date a county board of

revision certifies its action to all the persons listed in R.C. 5715.20, including the Tax

Commissioner. However, the court, in its decision, made the decision prospective

only, and provided that "any appeal that has been completed before the date of this

decision shall remain fmal ***." {¶ 20} Thus, we must initially question the

appropriateness of the Supreme Court's dismissal of the instant matter under

Cleveland Elec. Illum., as the subject appeal had been dismissed by this board and the

parties' rights fmally determined on June 1, 2001; no appeal was timely taken from

this board's determination. Since appellant's motion for reconsideration of this

board's decision was filed some twelve months after our decision was journalized,

and, as stated in this board's rules of practice and procedure, Ohio Adm. Code 5717-1-12

(D), "(M)otions for reconsideration of any decision of the board may be filed with the

board only by a party or counsel of record in the proceedings before the board within

thirtv.davs of the date on which the decision was journalized" (emphasis added), we

determined we lacked jurisdiction to consider the motion. See State ex rel. Borsuk v.

Cleveland (1972), 28 Ohio St.2d 224, paragraph one of syllabus; Hal Artz Lincoln-

Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, paragraph three of syllabus;

Lutz v. Evatt (1945), 144 Ohio St. 635;"Midwest Enterprises v. Cuyahoga Cty. Bd of

Revision (Apr. 8, 1994 and June 24, 1994), BTA No. 1993-K-612, unreported, affirmed

(Feb. 6, 1995), Cuyahoga App. Nos. 67203 and 67565, unreported; PBS Construction,

Inc. v. Tracy (Mar. 7, 1997), BTA No. 1994-S-792, unreported. Accordingly, the only

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issue before the Supreme Court on appeal was this board's denial of appellant's motion

for reconsideration, as the underlying determination had been fmalized in 2001.

To the extent this appeal is properly before this board, the only issue

which could again be raised is the propriety of the appellant's attempt to relitigate an

issue which has already been conclusively addressed by this board. In doing so, we

now consider the issues currently before this board in the instant appeal as they

compare to those previously determined in The Royal Group Limited Liability

Company v. Cuyahoga Cty. Bd. of Revision (June 1, 2001), BTA No. 2000-A-2052,

unreported. A review of the statutory transcript certified to this board by the board of

revision in BTA No. 2000-A-2052 indicates that the original complaint, seeking a

decrease in the auditor's valuation of the subject property, was signed on behalf of the

appellant property owner by Jaime L. Go, who is identified as the president of the

property owner, the Royal Group Limited Liability Company. The same complaint

serves as the basis of the instant appeal. Thus, this board's prior decision is applicable

and controlling here under the doctrine of res judicata, which includes collateral

estoppel.

The purpose of res judicata and collateral estoppel is to prevent the

relitigation of facts and issues between the same parties. As explained by the Supreme

Court in National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60:

"' [W]here a party is called upon to make good his cause ofaction ***, he must do so by all the proper means withinhis control, and if he fails in that respect ***, he will notafterward be permitted to deny the correctness of thedetermination, nor to relitigate the same matters betweenthe same parties.' (Citations omitted.) *** `Its enforcement

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is essential to the maintenance of social order; for, the aidof judicial tribunals would not be invoked for thevindication of rights of person and property, if ***conclusiveness did not attend the judgements of suchtribunals ***. "' (Citations omitted.) Id. at 62.

The test for determining whether the relitigation amounts to collateral

estoppel was stated by the Supreme Court in New Winchester Gardens, Ltd. v.

Franklin Cty. Bd ofRevision (1997), 80 Ohio St.3d 36, 41:

"In Thomson v. Wing (1994), 70 Ohio St.3d 176, 183 ***,we stated that collateral estoppel was applicable when thefact or issue `(1) was actually and directly litigated in theprior action, (2) was passed upon and determined by acourt of competent jurisdiction, and (3) when the partyagainst whom collateral estoppel is asserted was a party inprivity with a party to the prior action.' *** "(Citationsomitted.)

The same jurisdictional issues as they relate to the complaint filed by the

appellant on the subject parcels for tax year 1999 are present here as they were in

Royal Group, supra. Because the board of revision dismissed appellant's complaint

under the holding in C.R. Truman, L.P. v. Cuyahoga Cty. Bd. of Revision (July 27,

2000), Cuyahoga App. No. 76713, unreported, discretionary appeal denied (Apr. 11,

2001), the only issue which could arguably be before this board is whether such

dismissal was appropriate. This precise issue has already been decided by this board

in Royal Group, supra. Therefore, even if we were to consider appellant's appeal on

its merits, such claims would be barred by the doctrine of collateral estoppel.

Ultimately, however, based upon the specific language of Cleveland

Elec. Illum., we conclude that this matter was improvidently remanded to the

Cuyahoga County Board of Revision, as our June 1, 2001 decision in BTA No. 2000-

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A-2052 had become final. Accordingly, it is the order of this board that this appeal

must be, and hereby is, dismissed.

ohiosearchkeybta

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