[Cite as Scranton-Averell, Inc. v. Cuyahoga Cty. Fiscal Officer, 2013-Ohio-697.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 98493 and 98494



                           SCRANTON-AVERELL, INC.
                                                            PLAINTIFF-APPELLEE

                                                      vs.

      CUYAHOGA COUNTY FISCAL OFFICER, ET AL.
                                                            DEFENDANTS

[APPEAL BY CLEVELAND METROPOLITAN SCHOOL
       DISTRICT BOARD OF EDUCATION]


                                            JUDGMENT:
                                             AFFIRMED


                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                Case Nos. CV-771573 and CV-771575

        BEFORE: Keough, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                        February 28, 2013
ATTORNEY FOR APPELLANT

James H. Hewitt, III
Hewitt Law L.L.C.
The Groh Mansion
3043 Superior Avenue
Cleveland, OH 44114

ATTORNEYS FOR APPELLEES

For Scranton-Averell, Inc.

Andrew M. Fowerbaugh
Stickney & Stickney, L.L.P.
3301 Terminal Tower
50 Public Square
Cleveland, OH 44113

For Cuyahoga County Fiscal Officer

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mark R. Greenfield
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} In this consolidated appeal, defendant-appellant, the Cleveland Metropolitan

School District Board of Education (“CMSD”), appeals the trial court’s decision

reversing the decision of the Cuyahoga County Board of Revision (“BOR”), which denied

plaintiff-appellee, Scranton-Averell, Inc.’s, complaints to decrease the 2009 tax value of

the parcels commonly referred to as 1920 Scranton Road, Cleveland, Ohio. Finding no

merit to the appeal, we affirm.

       {¶2} Scranton-Averell is the record owner of real property assigned Permanent

Parcel Numbers 004-28-004 through 004-28-008 in Cuyahoga County, Ohio. These

parcels are contiguous with conjoined buildings and have a common mailing address of

1920 Scranton Road.     For the 2009 tax year, these parcels were taxed on two separate

bills, with parcel 004-28-008 billed separately from the others.

       {¶3} For the 2009 tax year, the Cuyahoga County Auditor assigned the parcels a

combined value of $416,900 — $147,000 for the land and $272,200 for the buildings.

Of this total, $71,500 was attributable to parcel 04-28-008 — $63,900 for land and

$7,600 for buildings. The remaining parcels were valued at $345,400 — $77,800 for

land and $267,600 for buildings.

       {¶4} On March 30, 2011, Scranton-Averell filed two separate complaints with the

BOR requesting that the true value of the parcels be reduced by 99% to a value of $1,000
each. In response, CMSD filed counter-complaints requesting the auditor’s values be

retained.

       {¶5} The BOR considered Scranton-Averell’s complaints at a hearing on October

24, 2011. Prior to the hearing, Scranton-Averell filed the written appraisal of John

Davis, an MAI certified appraiser, for the parcels at issue, indicating the value of the

parcels is $0.

       {¶6} At the hearing, the BOR heard testimony from Davis regarding his report and

from Thomas Stickney, the president of Scranton-Averell. CMSD participated in the

hearing as well.   The evidence and testimony presented at the BOR hearing showed that

the parcels at issue consist of 2.58 acres containing a warehouse-industrial building. Mr.

Davis opined that the building had no value, and based on its deterioration and current

state, it should be razed for industrial development. Mr. Davis opined that $264,000

would be a reasonable figure consistent with the cost manual standards to raze the

buildings and clear the site.   He further opined based on the market data approach that if

the land was vacant, it would have a value of $125,000. This value was less than the

auditor’s land determination value of $147,000.        Mr. Davis then testified that it is

customary that the costs of razing the buildings would be subtracted from the land value;

thus, the value of the property would be $0.

       {¶7} The BOR issued its decisions denying Scranton-Averell’s request for a tax

decrease.   The decisions reduced the building value to $0, but increased the land value

from $141,700 to $405,700, thus increasing the land value by $264,000. The only
rationale given by the BOR was that it apportioned the demolition costs between the

parcels and added the auditor’s value to determine its new value.

       {¶8} Scranton-Averell filed appeals in both cases with the Cuyahoga County Court

of Common Pleas pursuant to R.C. 5717.05, which were consolidated for disposition. In

its discretion, the court did not hold a hearing on the matter, but reviewed the record from

the BOR, and issued a written decision reversing the decision of the BOR. The trial

court found the BOR’s increased revaluation was arbitrary and unreasonable, and

concluded that the uncontroverted evidence and testimony produced by Scranton-Averell

warranted the decreased tax valuation as requested.     Therefore, the trial court sustained

Scranton-Averell’s assignments of error and directed that the 2009 tax valuation on both

parcels to be $1,000 each.

       {¶9} CMSD appeals, raising two assignments of error.

                                      I. Civ.R. 6(B)

       {¶10} In its first assignment of error, CMSD contends that the trial court abused its

discretion in denying its request for additional time to file a brief and set forth the basis

for its position that the property owner had failed to establish its right to the value

requested.

       {¶11} Civ.R. 6(B) permits a party to request additional or an extension time to act.

 It provides that a “court for cause shown may at any time in its discretion * * * (1) with

or without motion or notice order the period enlarged if request therefor is made before

the expiration of the period originally prescribed or as extended by a previous order * * *
.”

       {¶12} A trial court has discretion to extend the time merely for “cause shown.”

Kaur v. Bharmota, 10th Dist. No. 05AP-1333, 2006-Ohio-5782, ¶ 10.          Accordingly, we

will not reverse the trial court’s decision absent an abuse of discretion.       “The term

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980). When applying the abuse of discretion standard, an

appellate court may not substitute its judgment for that of the trial court. Freeman v.

Crown City Mining, Inc., 90 Ohio App.3d 546, 552, 630 N.E.2d 19 (4th Dist.1993).

       {¶13} On January 17, 2012, and prior to consolidation, the trial court issued an

order scheduling a case management pretrial conference in February.       In this scheduling

order, the court expressly stated that “[i]f a continuance is sought for any reason, please

file the appropriate motion, at least seven days before the scheduled event * * * .”

       {¶14} At the February case management conference, the trial court set a briefing

schedule, ordering Scranton-Averell to file its brief on or before March 23, 2012 and that

CMSD’s brief was due on or before April 23. Scranton-Averell subsequently moved to

consolidate the two cases on March 23, which was also the same date it filed its brief.

The trial court ordered the cases consolidated and revised the briefing schedule, ordering

CMSD’s brief due on May 3.

       {¶15} On May 1, CMSD requested an extension of time to file its brief pursuant to
Civ.R. 6. CMSD stated in its motion that it was requesting an additional twenty-one

days and stated that the basis for the extension was “due to the press of other business”

and thus had “been unable to research and prepare a response brief in the time allowed.”

CMSD identified three cases it was specifically working on.

      {¶16} The trial court denied CMSD’s motion that same day reasoning that the

motion was “filed 2 days before the due date.”   The trial court noted that CMSD’s brief

remained due on May 3.    However, CMSD never filed a brief.

      {¶17} Although this court may have acted differently when presented with

CMSD’s motion for an extension of time considering no prior extension was requested

and the case was only pending for a few months, we are unfortunately bound by the abuse

of discretion standard of review.    Because the trial court issued a standing order in

January notifying all parties that any continuance must be requested in writing seven days

before the schedule event, CMSD was on notice that its motion could be deemed

untimely. Moreover, we note that Scranton-Averell’s brief was filed on March 23, and

it did not make any new arguments or attempt to present any new evidence in its brief that

was not already part of the BOR record.

      {¶18} Accordingly, the trial court did not abuse its discretion in denying CMSD’s

motion for extension of time. The first assignment of error is overruled.

                           II. Reversal of Board of Revision

      {¶19} In its second assignment of error, CMSD contends the trial court abused its

discretion when it valued the real property described in the two complaints filed with the
board of revision at $1,000 per complaint.

       {¶20} Pursuant to R.C. 5717.05, a party may appeal the decision of the county

board of revision to the court of common pleas. On appeal,

       [t]he court may hear the appeal on the record and the evidence thus
       submitted, or it may hear and consider additional evidence. It shall
       determine the taxable value of the property whose valuation or assessment
       for taxation by the county board of revision is complained of, or if the
       complaint and appeal is against a discriminatory valuation, shall determine
       a valuation that shall correct the discrimination, and the court shall
       determine the liability of the property for assessment for taxation, if that
       question is in issue, and shall certify its judgment to the auditor, who shall
       correct the tax list and duplicate as required by the judgment.

       {¶21} The Supreme Court of Ohio has explained that R.C. 5717.05 “requires more

than a mere review” of the board’s decision. Black v. Bd. of Revision, 16 Ohio St.3d 11,

14, 475 N.E.2d 1264 (1985). However, “that review may be properly limited to a

comprehensive consideration of existing evidence and, in the court’s discretion, to an

examination of additional evidence.” Id.      The common pleas court must “consider all

such evidence and determine the taxable value through its independent judgment.” Id.

Thus, “[i]n effect, R.C. 5717.05 contemplates a decision de novo. It does not, however,

provide for an original action or trial de novo.” Id.

       {¶22} Accordingly, “a trial court’s analysis of the evidence should be thorough and

comprehensive.”     Tall Pines Holdings, Ltd. v. Testa, 10th Dist. No. 04AP-372,

2005-Ohio-2963, ¶ 18. This type of review ensures that a court’s final determination is

not a mere rubber stamping of the board’s decision, “but rather an independent

investigation and complete reevaluation” of the board’s “value determination.”          Id.,
citing Black at ¶ 14.     While the trial court contemplates a “decision de novo,” an

appellate court should only disturb the trial court’s independent judgment upon an abuse

of discretion. Id. at ¶ 19.

         {¶23} Neither a property valuation of a county auditor nor that of a board of

revision is entitled to a presumption of validity. Springfield Local Bd. of Edn. v. Summit

Cty. Bd. of Revision, 68 Ohio St.3d 493, 494-495, 1994-Ohio-501, 628 N.E.2d 1365. A

taxpayer has the initial burden to establish the right to a reduction when challenging a

county auditor’s property valuation.     Id.   On appeal, a taxpayer “may successfully

challenge a determination of a Board of Revision only where the taxpayer produces

competent and probative evidence to establish the correct value of the subject property.”

Amsdell v. Cuyahoga Cty. Bd. of Revision, 69 Ohio St.3d 572, 574, 1994-Ohio-314, 635

N.E.2d 11.     A taxpayer is “not entitled to the deduction claimed merely because no

evidence is adduced contra his claim.” W. Industries, Inc. v. Hamilton Cty. Bd. of

Revision, 170 Ohio St. 340, 342, 164 N.E.2d 741 (1960).

         {¶24} CMSD argues that the trial court erred when it accepted Scranton-Averell’s

requested valuation on the basis that no party had submitted any evidence of some other

value.

         {¶25} While an auditor or BOR has no corresponding burden to defend his

valuation and a taxpayer is not entitled to a reduction simply because the auditor presents

no evidence to rebut his claim, the auditor’s duty to defend his valuation is triggered once

the taxpayer does present competent, probative evidence to support a right to a reduction.
 Murray & Co. Marina, Inc. v. Erie Cty. Bd. of Revision, 123 Ohio App.3d 166, 172-174,

703 N.E.2d 846 (6th Dist.1997). By not presenting any evidence, the BOR and county

auditor do risk that the court will find the appellant’s evidence competent and probative,

and therefore, determinative of the appeal. Restivo v. Ottawa Cty. Bd. of Revision, 6th

Dist. No. 99-OT-052, 1999 Ohio App. LEXIS 6399 (Dec. 30, 1999), *9.

       {¶26} In this case, CMSD did not present any evidence at the BOR hearing or file

a brief with the trial court.   The issue before the trial court was identical to that of the

BOR, and the burden for the decreased valuation remained with Scranton-Averell.           At

the BOR hearing, CMSD only challenged the estimated costs of demolition versus repair.

 It did not disagree with Davis’s opinion that the building had no value and it did not

question or object to Davis’s opinion that demolition costs should be deducted from the

value of the property.

       {¶27} The trial court conducted an independent review of the BOR’s decision and

evidence on appeal.      The evidence and testimony presented at the BOR hearing showed

that the parcels at issue consist of 2.58 acres containing a warehouse-industrial building.

Mr. Davis opined that the building had no value, and based on its deterioration and

current state, it should be razed for industrial development. Mr. Davis opined that

$264,000 would be a reasonable figure consistent with the cost manual standards to raze

the buildings and clear the site.    He further opined based on the market data approach

that if the land was vacant, it would have a value of $125,000. Mr. Davis then testified

that it is customary that the costs of razing the buildings would be subtracted from the
land value; thus, the value of the property would be $0.

       {¶28} The trial court found the BOR’s decision increasing the land value for both

tax bills based on the evidence presented to be arbitrary and unreasonable.     While the

trial court’s standard of review in a tax valuation administrative appeal does not

encompass a determination whether the BOR’s decision was reasonable, the record is

devoid of any evidence presented to the BOR to support the land value increase.       The

BOR explained its justification for the new valuation as, “Apportioning demolition costs

between this parcel and [the other consolidated parcel] and adding auditor’s land value

results in new valuation as shown.”   Rather than decreasing the parcels by the estimated

demolition costs, the BOR increased the land value by the estimated demolition costs.

Davis testified that the costs of demolition are traditionally deducted from the total

property value, and no evidence or testimony to the contrary was presented.     Therefore,

according to Davis, the land value would be $125,000 after demolition, and the

demolition would cost approximately $264,000. Subtracting those two figures would

leave a value of $0.

       {¶29} Therefore, the trial court found that based on Davis’s appraisal, the land

value was nominal.        Accordingly, the trial court sustained Scranton-Averell’s

assignments of error and reversed the decision of the BOR.    The trial court directed that

the 2009 taxable value for the parcels be decreased to $1,000 each.

       {¶30} We cannot substitute our judgment for that of the trial court on factual

issues. Scranton-Averell had the duty to prove its right to a reduction in value. R.R.Z.
Assoc. v. Cuyahoga Cty. Bd. of Revision, 38 Ohio St.3d 198, 202, 527 N.E.2d 874 (1988).

 But whether we agree with the trial court’s conclusion from the facts that

Scranton-Averell satisfied its burden is immaterial. As the resolution of a question of fact,

the trial court’s determination of value will be reversed only when it appears from the

record that such decision is unreasonable or arbitrary.

       {¶31}    Accordingly, we find no abuse of discretion by the trial court in reversing

the BOR’s decision.      The trial court conducted an independent review of the evidence

and found that Scranton-Averell presented probative and competent evidence supporting

its request, thus satisfying its burden.

       {¶32} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
