Trebmal Landerhaven v. Cuyahoga Cty. Bd. of Revision - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Trebmal Landerhaven, Appellant and Cross-Appellee, v. Cuyahoga
County Board of Revision et al., Appellees; Mayfield Heights
Board of Education, Appellee and Cross-Appellant.
[Cite as Trebmal Landerhaven v. Cuyahoga Cty. Bd. of Revision
(1995), Ohio St.3d .]
Taxation -- Real property evaluation -- Board of Tax Appeals
decision upheld when supported by credible evidence.
(No. 93-2593 -- Submitted October 14, 1994 -- Decided
April 12, 1995.)
Appeal from the Board of Tax Appeals, Nos. 91-M-269 and
91-M-270.
Trebmal Landerhaven ("Trebmal"), a limited partnership,
owns real property in the Landerhaven Corporate Center Office
Park in Mayfield Heights, Ohio. One parcel, consisting of
6.250 acres, is improved with three one-story masonry office
buildings, known as Landerhaven Office Plaza, containing
approximately 73,542 square feet of net rental space. The
adjoining 4.593-acre parcel, also owned by Trebmal, is
unimproved. The property was purchased in late 1986, and
construction of the buildings began in 1987. As of January 1,
1988, eighty-five to ninety percent of the basic shells of the
buildings were completed, and by January 1, 1989, the basic
shells were "substantially completed" and more than one-third
of the rental space was occupied.
For tax years 1988 and 1989 the Cuyahoga County Auditor
established the true value of the subject property as:
Tax year 1988 Tax year 1989
Land, $1,887,000 Land, $1,887,000
Buildings ...$2,406,310 Buildings $3,961,910

Total $4,293,310 Total $5,848,910

The Cuyahoga County Board of Revision scheduled the
complaints as to valuation filed by Trebmal and the
counter-complaints filed by the Mayfield Heights Board of
Education ("school board") for hearing on August 9, 1990.
Trebmal requested and was granted a continuance in order to

gather sufficient evidence to fully prepare its case. A second
hearing, scheduled for November 30, 1990, was also postponed
for the same reason and the hearing was rescheduled for January
30, 1991. A third continuance request was denied by the board
of revision.
The board of revision determined that the values
established by the auditor were correct and Trebmal then
appealed to the Board of Tax Appeals ("BTA"), where the cases
were consolidated for hearing and expert appraisal testimony
was presented by Trebmal and by the school board.
Upon appeal, the BTA determined that the true value of the
subject property was:

Tax year 1988 Tax year 1989
Land, $2,170,000 Land, $2,170,000
Building..... $2,504,320 Building ...$3,263,235
Total ...$4,674,320 Total $5,433,235

The cause is now before this court upon an appeal as of
right.

Fred Siegel Co., L.P.A., Fred Siegel, Stephen R. Gill,
Robert K. Danzinger, Annrita S. Johnson and Daniel S. Siegel,
for appellant and cross-appellee.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting
Attorney, and Timothy Kollin, Assistant Prosecuting Attorney,
for appellees Cuyahoga County Board of Revision and Cuyahoga
County Auditor.
Kelley, McCann & Livingstone, Fred J. Livingstone and
Robert A. Brindza, for appellee and cross-appellant.

Per Curiam. The decision of the BTA is affirmed.
Trebmal's appeal challenges the land valuations for 1988
and 1989 and the building valuation for 1989. Trebmal also
contends that the land and building values for 1989 constitute
an unconstitutional taking of property without due process of
law; that the BTA abused its discretion in violation of the
uniform applicability provision of the Ohio Constitution,
Section 26, Article II; and that the BTA decision constitutes a
denial of equal protection of the laws, as guaranteed by the
Ohio and federal Constitutions.
Trebmal's constitutional issues are without merit. The
valuation found by the BTA was not "grossly excessive," as
asserted by Trebmal, but was supported by credible evidence.
The valuation did not constitute an unlawful taking of property
in violation of the Fifth Amendment to the Constitution of the
United States, or a denial of due process under the Fourteenth
Amendment to the Constitution of the United States, or a
violation of the Ohio Constitution.
In R.R.Z. Assoc. v. Cuyahoga Cty. Bd. of Revision (1988),
38 Ohio St.3d 198, 202, 527 N.E.2d 874, 878, we rejected
appellant's (R.R.Z. Associates') claim that the subject
property was not valued uniformly under Section 2, Article XII
of the Ohio Constitution, stating: "[S]ince we find that there
is sufficient probative evidence to support the BTA's decision,
we disagree with appellant's premise and hold that the property
is valued uniformly."

In Rick Case Motors, Inc. v. Tracy (1994), 71 Ohio St.3d
380, 382-383, 643 N.E.2d 1137, 1138, we stated:
"Finally, Case claims that this application of the statute
denies it equal protection. It then recites examples of how
this problem could occur; however, Case presented no evidence
of how other taxpayers were actually treated in contrast with
it. Consequently, the record is not factually sufficient to
establish its claim. Lyons v. Limbach (1988), 40 Ohio St.3d
92, 94, 532 N.E.2d 106, 109." See, also, Koblenz v. Cuyahoga
Cty. Bd. of Revision (1966), 5 Ohio St.2d 214, 34 O.O.2d 424,
215 N.E.2d 384.
Trebmal can find no support in Allegheny Pittsburgh Coal
Co. v. Cty. Commr. of Webster Cty. (1989), 488 U.S. 336, 109
Sup. Ct. 633, 102 L.Ed.2d 697. That case is factually
distinguishable because, as the school board observes, in
Allegheny, the Supreme Court was presented with the question
whether certain tax assessments constituted an equal protection
violation when the assessments were up to thirty-five times
more than the assessments for comparable neighboring property
over a ten-year period. See 488 U.S. at 342, 344, 109 S. Ct.
at 637, 638, 102 L.Ed.2d at 696, 697.
Trebmal presented no evidence to establish that its
property was assessed at a value that was "greatly in excess of
the prevailing average ratio of assessed value to the fair
market value * * * [of] property in Cuyahoga County." Koblenz,
supra, at 215, 34 O.O.2d at 424, 215 N.E.2d at 386.
In its cross-appeal, the school board contends that the
BTA erred in not excluding the report and testimony of
Trebmal's expert witness, and that the BTA's determination of
value as to land and buildings was unreasonable and unlawful
because it was based upon evidence which should have been
excluded. The school board also contends the BTA's decision
should be reversed and remanded because it failed to impose
monetary sanctions against Trebmal.
Taking the cross-appeal first, we agree with the BTA as to
the request for sanctions. Apparently, Trebmal had intended to
present the testimony of its officers to the BTA and had so
advised the school board. The hearing was continued three
times at Trebmal's request because its witness was
unavailable. However, on February 15, 1993, Trebmal changed
its tactics and decided to present the appraisal evidence of
Wesley Baker, and advised the school board of this change.
Baker's appraisal report was not available until the morning of
the hearing, which was held on February 24, 1993. At the
hearing, the school board moved for sanctions against Trebmal,
seeking reimbursement of its costs incurred in opposing
appellant's original strategy and in challenging Baker's
appraisal.
Ohio Adm. Code 5717-1-10(A) states: "Discovery may be
permitted by deposition upon oral examination or written
questions; written interrogatories; * * * and requests for
admissions. The 'Ohio Rules of Civil Procedure' shall be used
as a guideline for discovery purposes * * *." The school board
contends that the late notice of Trebmal's intention to present
an expert witness constituted "surprise."
Although Civ. R. 37(B) provides for sanctions when a party
fails to comply with discovery rules, the BTA found that there

were other sanctions available to it, under Ohio Adm. Code
5717-1-13, which include prohibiting the introduction of expert
testimony into evidence and ordering the payment of reasonable
expenses caused by failure to obey an order. The BTA found,
and we agree, that such sanctions were not appropriate because
the school board was given a choice to cross-examine the
appraiser at the hearing or to continue the hearing until a
later time. In addition, the school board was prepared to, and
did, in fact, offer the testimony of its own expert appraiser.
Moreover, counsel for the school board was familiar with the
underlying information and was able to cross-examine Trebmal's
appraisal witness effectively.
As to the true value of the subject property, we hold that
the decision of the BTA was reasonable and lawful under
paragraph four of the syllabus of Cardinal Fed. S. & L. Assn.
v. Cuyahoga Cty. Bd. of Revision (1975), 44 Ohio St.2d 13, 336
N.E.2d 433:
"The fair market value of property for tax purposes is a
question of fact, the determination of which is primarily
within the province of the taxing authorities, and this court
will not disturb a decision of the Board of Tax Appeals with
respect to such valuation unless it affirmatively appears from
the record that such decision is unreasonable or unlawful.
(Bd. of Revision v. Fodor, 15 Ohio St.2d 52 [44 O.O. 2d 30, 238
N.E.2d 25], approved and followed.)"
We are satisfied from our review of the record that the
BTA's findings are based upon sufficient probative evidence,
including expert appraisal testimony. See First Union Real
Estate Equity & Mtge. Investments v. Cuyahoga Cty. Bd. of
Revision (1990), 53 Ohio St.3d 236, 560 N.E.2d 177.
Both Wesley Baker and Richard Van Curen, the school
board's appraisal witness, agreed that the highest and best use
of the property was for office development and they utilized
the same method of appraisal, the cost method, which the BTA
found to be the most appropriate here. The BTA also agreed
with Van Curen's estimate of land value of $200,000 per acre as
of January 1, 1988, and that that value should apply as well to
1989. Despite Baker's conclusion that the reasonable value of
the land was $150,000 per acre, the record discloses a
forty-acre sale in the area in July 1988 for $180,000 per acre,
and a six-acre sale of land with freeway exposure in July 1988
for $237,500 per acre. In addition, the BTA found Van Curen's
estimate of $220,000 per acre as of January 1, 1989 was not
inconsistent with its finding because it was appropriate to
carry forward the 1988 values to 1989.
Finally, Trebmal argues that the BTA ignored the zoning
requirement that all tracts be at least six acres in size, and
that this led to an excessive valuation for the land by the
BTA. This issue is not dispositive because Wesley testified
that the 4.593-acre tract could have been made to comply with
zoning requirements, either by acquiring adjoining land (albeit
with difficulty) to enlarge the tract to six full acres, or by
selling the tract. In any case, there was sufficient evidence
to establish that the BTA determination of $200,000 per acre
was not unreasonable or unlawful, and thus its decision is
affirmed.
Decision affirmed.