[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Beavercreek Towne Station, L.L.C. v. Greene Cty. Bd. of Revision, Slip Opinion No. 2018-Ohio-
4300.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2018-OHIO-4300
   BEAVERCREEK TOWNE STATION, L.L.C., ET AL., APPELLANTS, v. GREENE
                 COUNTY BOARD OF REVISION ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Beavercreek Towne Station, L.L.C. v. Greene Cty. Bd. of
                   Revision, Slip Opinion No. 2018-Ohio-4300.]
Real-property valuation—Standing—Property owner may authorize tenant to
        pursue tax appeal on property owner’s behalf—Decision vacated and cause
        remanded.
     (No. 2016-1713—Submitted July 17, 2018—Decided October 25, 2018.)
    APPEAL from the Board of Tax Appeals, Nos. 2015-1488, 2015-1496, and
                                        2015-1544.
                                ____________________
        Per Curiam.
        {¶ 1} At issue in this property-tax appeal is the 2014 tax valuation of a
shopping center consisting of five separate real-estate parcels. The auditor had
assigned an aggregate value to the parcels of $22,233,850 as of the tax-lien date,
                              SUPREME COURT OF OHIO




January 1, 2014. In October 2014, the center was sold as part of a “portfolio sale”
along with other properties. A single conveyance-fee statement was filed for the
five parcels allocating $47,479,830 to those parcels from the total amount paid
under the sale agreement. Appellee Beavercreek City School District Board of
Education (“school board”) filed a valuation complaint, and at the school board’s
instigation, both appellee Greene County Board of Revision (“BOR”) and the
Board of Tax Appeals (“BTA”) valued the individual parcels by reference to the
aggregate price of $47,479,830. But the two boards differed in how they allocated
the total to each of the five parcels.
        {¶ 2} Appellant property owner, Beavercreek Towne Station, L.L.C., and
one of its tenants, appellant Kohl’s Illinois, Inc. (Kohl’s Department Stores, Inc.),
argue that because the properties were subject to leases, the sale price did not reflect
what the buyers in the market would pay for the unencumbered real estate.
Moreover, Beavercreek contends that the appraisals presented at the BTA show that
the sale price does not reflect the property’s unencumbered value as required by
amended R.C. 5713.03. On appeal, Beavercreek argues that the BTA’s failure to
give proper consideration to the appraisal evidence calls for vacating its decision
and remanding the cause on the recent authority of Terraza 8, L.L.C. v. Franklin
Cty. Bd. of Revision, 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, and
Bronx Park S. III Lancaster, L.L.C. v. Fairfield Cty. Bd. of Revision, ___ Ohio St.3d
___, 2018-Ohio-1589, ___ N.E.3d ___. Additionally, Beavercreek and Kohl’s
contend that the BTA erred by excluding Kohl’s as a party and excluding the
appraisal evidence concerning the value of the Kohl’s parcel.
        {¶ 3} We agree that the BTA erred by excluding evidence offered to show
the value of the Kohl’s parcel, and we reverse that ruling. We also agree that the
BTA’s failure to fully consider the appraisal evidence calls for vacating the BTA’s
decision and remanding the cause pursuant to Terraza 8 and Bronx Park.




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                                  January Term, 2018




                           I. Proceedings before the BOR
          {¶ 4} The auditor had valued all five parcels for tax year 2014, a reappraisal
year in Greene County, at an aggregate value of $22,233,850; that valuation
included assigning $5,606,900 to the Lowe’s parcel and $6,197,150 to the Kohl’s
parcel.
          {¶ 5} The proceedings before the BOR commenced when the school board
filed a complaint against the 2014 valuation as to all five parcels, contending that
their proper aggregate value was the 2014 sale price of $47,479,830, derived from
the price set forth on a conveyance-fee statement for the five parcels that was filed
on October 27, 2014.
          {¶ 6} The BOR held a hearing attended by counsel for Beavercreek and the
school board. The BOR adopted the sale price as the aggregate value of the five
parcels and allocated it to the individual parcels by using the ratio of individual
parcel value to aggregate value derived from the auditor’s valuation. See FirstCal
Indus. 2 Acquisitions, L.L.C. v. Franklin Cty. Bd. of Revision, 125 Ohio St.3d 485,
2010-Ohio-1921, 929 N.E.2d 426, ¶ 4, 11, 20, 32, 35 (affirming allocation of
aggregate sale price reported on conveyance-fee statement to individual parcels in
accordance with each individual parcel’s share of the original aggregate valuation
by the auditor). The BOR issued five decision letters, each setting forth the amount
of the sale price allocated to each particular parcel. The Lowe’s parcel was valued
at $11,973,400 and the Kohl’s parcel at $13,233,800.
                           II. Proceedings before the BTA
                A.     The three appeals and the appraisal evidence
          {¶ 7} Beavercreek, through attorney Ryan Gibbs, appealed the BOR’s
decision as to the Lowe’s parcel to the BTA.                Through attorney Karen
Bauernschmidt, Beavercreek and its tenant Kohl’s jointly appealed the BOR’s
decision as to the Kohl’s parcel to the BTA. Finally, the school board filed a cross-
appeal as to all five BOR decisions.




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                              SUPREME COURT OF OHIO




       {¶ 8} The BTA consolidated the three appeals and held a hearing at which
Beavercreek and Kohl’s presented three appraisals prepared by Richard Racek Jr.,
MAI, while also offering Racek’s supporting testimony. Racek’s appraisal of the
Lowe’s parcel determined a 2014 value of $7,300,000, based on the sales-
comparison and income-capitalization approaches. His appraisal of the Kohl’s
parcel determined a 2014 value of $5,930,000 based on the sales-comparison and
income-capitalization approaches. And his appraisal of the remaining three parcels
determined a 2014 value of $22,075,000 for those parcels based on the sales-
comparison and income-capitalization approaches.
       {¶ 9} Racek’s aggregate valuation of the shopping center amounted to
$35,305,000—well below the allocated portfolio sale price of $47,479,830.
         B. The contract allocation of the sale price to the five parcels
       {¶ 10} At the BTA hearing, the school board offered three exhibits,
including a copy of the 2014 purchase agreement for the sale of the five
Beavercreek Towne Station parcels and parcels at a nearby shopping center. The
agreement contained an appendix that allocated the sale price to the parcels of the
two shopping centers involved in the sale.
       {¶ 11} The contract called for a sale of the Beavercreek center along with
another shopping center as part of one transaction. On the pages showing the
allocation of the overall sale price, there was an apparent error. One of the parcel
numbers from the other shopping center was listed both as a component of that
shopping center and as a component of Beavercreek. Additionally, the parcel
number of the Lowe’s parcel in Beavercreek was absent altogether.
       {¶ 12} In addition to the documentary evidence, the school board offered
the testimony of a subpoenaed officer of Beavercreek with respect to the allocation
of the portfolio sale price of multiple properties.




                                           4
                                  January Term, 2018




                       C. The school board’s motion to exclude
        {¶ 13} Shortly before the BTA hearing, the school board moved to exclude
Kohl’s as a party on the grounds that Kohl’s had no standing as a lessee separate
from that of the property owner, Beavercreek. The school board renewed that
motion at the hearing, and the board examiner deferred ruling on the motion until
the ultimate decision. In response, Kohl’s strenuously argued in favor of its own
separate standing based on both the authorization from its landlord Beavercreek
and the contention that, because as tenant Kohl’s is responsible for paying property
taxes under the lease, it qualifies as the real party in interest.
                                 D. The BTA’s decision
        {¶ 14} In its decision, the BTA first granted the school board’s motion to
exclude Kohl’s as a party, explaining that as a mere lessee, Kohl’s lacked standing
as a complainant under R.C. 5715.19 and as an appellant to the BTA pursuant to
R.C. 5717.01.     BTA Nos. 2015-1488, 2015-1496, and 2015-1544, 2016 WL
6434037, at *2 (Oct. 25, 2016). The BTA then struck from the record the appraisal
evidence offered by Kohl’s.
        {¶ 15} Turning to the merits, the BTA began by noting that Beavercreek’s
objections to using the sale price were premised not primarily on the recency or
arm’s-length character of the sale, but on two other circumstances: the sale
involved the “leased fee interest” in the property, and the purchase price involved
a portfolio sale including additional properties. Id. at * 3. Although the tax year
2014 was at issue and amended R.C. 5713.03 calls for valuing the “fee simple
estate, as if unencumbered,” the BTA rejected Beavercreek’s leased-fee argument
by citing case law restricting rebuttal of the sale price to impugning the recency or
arm’s-length character of the transaction. Id. The BTA also rejected, both factually
and as a legal objection to using the sale price, the contention that the property was
not exposed to the open market in connection with the sale. Id. at * 4.




                                            5
                                SUPREME COURT OF OHIO




        {¶ 16} Next, the BTA addressed and rejected Beavercreek’s contention that
no portion of the sale price should be allocated to the Lowe’s parcel because the
Lowe’s parcel number was absent from the contractual allocation of the sale price.
The BTA inferred from the totality of the evidence that the omission of the Lowe’s
parcel number was a typographical error and concluded that the Lowe’s parcel was
part of the transfer referred to in the contract. Id. at *4-5.
        {¶ 17} The BTA then addressed the issue of allocating the total sale price
to the five individual parcels. The BTA invoked the property owner’s “burden to
rebut the propriety of [the] allocation” and found that Beavercreek had failed to
rebut the validity of the allocation in the purchase agreement.                    Id. at *6.
Accordingly, the BTA adopted the contractual allocation, which substantially
changed the proportionate share of the aggregate tax burden borne by the Lowe’s
and Kohl’s parcels.
        {¶ 18} Here are the values found by the BTA as opposed to those
determined by the BOR:


                                  BOR value                  BTA value
Lowe’s parcel             $11,973,400               $13,698,600
Kohl’s parcel             $13,233,800               $11,155,410
Other parcels             $22,272,700               $22,625,820
Aggregate                         $47,479,9001               $47,479,830


        {¶ 19} Two notices of appeal were filed from the BTA’s decision. One was
filed by attorney Gibbs on behalf of Beavercreek, and the other was filed by
attorney Bauernschmidt on behalf of both Beavercreek and Kohl’s.



1
 The small discrepancy between the aggregate numbers may be attributed to rounding that was part
of the BOR’s computation of allocated value.




                                               6
                               January Term, 2018




                                  III. Analysis
       A. Because Beavercreek authorized the tax appeal in relation to the
          Kohl’s parcel, the BTA erred by excluding the evidence of value of
                                       that parcel
       {¶ 20} The BTA correctly determined that as a tenant, Kohl’s had no
standing independent from its landlord Beavercreek to challenge the valuation of
its parcel. That determination is well grounded. R.C. 5715.19(A) permits certain
public officials to challenge property values along with “[a]ny person owning
taxable real property in the county.” Lessees are not mentioned and are therefore
not authorized to file valuation complaints. Likewise, rights to appeal from BOR
decisions to the BTA are confined to certain officials or boards, plus a “taxpayer
authorized by section 5715.19 of the Revised Code to file complaints against
valuations or assessments with the auditor.” R.C. 5717.01. Lessees are not
permitted to appeal to the BTA in their own right. Finally, R.C. 5717.04 authorizes
appeals to this court in BOR cases by “any of the persons who were parties to the
appeal before the [BTA],” along with specified other persons. Lessees, who are
not properly parties below in their own right, cannot claim a right of their own to
appeal to the court—and here the BTA did in fact explicitly exclude Kohl’s as a
separate party below (but did not dismiss the joint appeal to the BTA by Kohl’s and
Beavercreek). Accordingly, Kohl’s could file an appeal from the BOR decision to
the BTA only as an agent of Beavercreek, not in its own right. It follows that the
BTA did not abuse its discretion by excluding Kohl’s as a separate and independent
party to the appeal.
       {¶ 21} Having granted the school board’s motion to exclude Kohl’s as a
party, the BTA regarded it as a mere logical extension of that ruling to strike from
the record “the appraisal evidence offered by Kohl’s,” as well as “any written
argument filed by Kohl’s.” BTA Nos. 2015-1488, 2015-1496, and 2015-1544,
2016 WL 6434037, *2. That additional ruling ignores the following facts relevant




                                         7
                             SUPREME COURT OF OHIO




to jurisdiction: (1) the appeal from the BOR’s valuation of the Kohl’s parcel was
prosecuted not only by Kohl’s but by Beavercreek itself, (2) the school board did
not ask for and the BTA did not grant a dismissal of the appeal of the valuation of
the Kohl’s parcel, and (3) Beavercreek allegedly conferred authority on Kohl’s to
pursue the appeal of the value of the Kohl’s parcel on Beavercreek’s behalf because
the owner was not on its own initiative going to raise that challenge.
       {¶ 22} We need not determine whether there was sufficient evidence that
Beavercreek authorized Kohl’s to pursue the appeal as its agent because attorney
Bauernschmidt also filed the appeal on behalf of Beavercreek directly. The notice
of appeal from the BOR decision relating to the Kohl’s parcel was explicitly
prosecuted as a joint appeal of “Beavercreek Towne Station LLC and Kohl’s
Illinois, Inc. (Kohl’s Department Stores, Inc.).”       It was signed by “Karen
Bauernschmidt, Esq.” who gave her attorney-registration number along with her
contact information—and she signed as “Appellant or Representative.” There is no
dispute that Beavercreek itself had authority as property owner to appeal the
valuation of the Kohl’s parcel, and the exclusion of Kohl’s as an independent party
did not prevent attorney Bauernschmidt from prosecuting the appeal to the BTA in
a representative capacity on behalf of Beavercreek itself.
       {¶ 23} We have held, “ ‘When an attorney files an appeal, it is presumed
that [she] has the requisite authority to do so.’ ” T. Ryan Legg Irrevocable Trust v.
Testa, 149 Ohio St.3d 376, 2016-Ohio-8418, 75 N.E.3d 184, ¶ 15, quoting State ex
rel. Gibbs v. Zeller, 2d Dist. Montgomery No. 9170, 1985 WL 7625, at *1 (Jan. 24,
1985). That presumption attached to Bauernschmidt in this case based on the form
of submission of the notice of appeal to the BTA, and it is the backdrop for viewing
her authority to act on behalf of Beavercreek at the BTA hearing. Bauernschmidt
filed the appeal to the BTA directly under Beavercreek’s name, thereby asserting
her authorization to pursue the appeal on behalf of the property owner.




                                         8
                                     January Term, 2018




         {¶ 24} The school board argues that the only evidence of authorization
consists of statements of the lawyers who are seeking a value reduction, which are
not themselves evidence. But this argument rests on a misunderstanding of the
burden of proof. Based on the notice of appeal relating to the Kohl’s parcel,
attorney Bauernschmidt was presumed to possess authorization from Beavercreek
as well as Kohl’s; accordingly, the burden lay on the school board to offer
“substantial proof” that such authorization was lacking. T. Ryan Legg Irrevocable
Trust at ¶ 17. Far from containing such proof, the record supports the authorization
of attorney Bauernschmidt by Beavercreek.2 At the BTA hearing, attorney Gibbs,
who represented Beavercreek with respect to the Lowe’s parcel, strongly confirmed
the authorization of Kohl’s and attorney Bauernschmidt to litigate on behalf of
Kohl’s that parcel’s value, and at oral argument, both attorneys confirmed that
Beavercreek had authorized attorney Bauernschmidt to appeal at the BTA and to
this court.
         {¶ 25} Because attorney Bauernschmidt presented evidence of the value of
the Kohl’s parcel on behalf of Beavercreek, it was error for the BTA to exclude that
evidence. We therefore reverse the BTA’s exclusion of that evidence.




2. Earlier during this appeal, we denied the school board’s motion to dismiss the notice of appeal
filed by Bauernschmidt on behalf of Beavercreek and Kohl’s. 148 Ohio St.3d 1441, 2017-Ohio-
1427, 72 N.E.3d 655. Our denial of the motion was justified both by Kohl’s independent standing
to appeal its own exclusion as a party, see Southside Community Dev. Corp. v. Levin, 116 Ohio
St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, ¶ 11, and by Bauernschmidt’s presumptive authority
to file on behalf of Beavercreek. Additionally, we note that Beavercreek’s filing two separate
notices of appeal from the same BTA decision is not good practice and parties should avoid it.
However, we do not perceive a jurisdictional defect under these circumstances, given that both
notices of appeal separately invoked the court’s jurisdiction as of the time they were filed. Accord
Soyko Kulchystsky, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 141 Ohio St.3d 43, 2014-Ohio-4511,
21 N.E.3d 297, ¶ 30 (jurisdiction over a valuation complaint is determined when the complaint is
filed).




                                                 9
                             SUPREME COURT OF OHIO




       B. The BTA did not abuse its discretion by inferring a typographical
                                            error
        {¶ 26} The brief filed on behalf of Beavercreek by attorney Gibbs argues
that there is no evidence in the record to show that the Lowe’s parcel was part of
the portfolio sale, with the result that the sale price cannot properly be allocated to
the Lowe’s parcel. Gibbs bases this contention on the contractual allocation
attached to the purchase agreement: the Lowe’s parcel number is not one of the
five parcel numbers listed for Beavercreek.
        {¶ 27} As discussed, the BTA found that other evidence, such as the deeds
and property-record cards, confirmed that the Lowe’s parcel was sold as part of the
total Beavercreek sale and that the fifth parcel number on the contractual allocation
was a typographical error. BTA Nos. 2015-1488, 2015-1496, and 2015-1544, 2016
WL 6434037, at *5. The record contains substantial indicia that the Lowe’s parcel
was part of the sale, including the conveyance-fee statement, which does reference
the Lowe’s parcel number, and the testimony of Beavercreek officer Joseph
Schlosser that the sale did contain the Lowe’s parcel. Additionally, the appraiser
himself testified that the actual Lowe’s parcel number was part of the sale.
        {¶ 28} Under the case law, we reverse the BTA’s findings of fact only when
there is a total absence of evidence to support a particular finding. HealthSouth
Corp. v. Testa, 132 Ohio St.3d 55, 2012-Ohio-1871, 969 N.E.2d 232, ¶ 14. Here,
ample evidence supports the BTA’s inference of a typographical error.
       C. The BTA erred by failing to give full consideration to the appraisal
                                          evidence
        {¶ 29} As Beavercreek points out, the BTA’s merits decision exhibits a
defect similar to its decisions in Terraza 8, 150 Ohio St.3d 527, 2017-Ohio-4415,
83 N.E.3d 916, and Bronx Park, ___ Ohio St.3d __, 2018-Ohio-1589, ___ N.E.3d
___.    Namely, the BTA adopted an allocated aggregate sale price of leased




                                          10
                                January Term, 2018




properties as the property value of each parcel without giving proper consideration
to the appraisal evidence.
       {¶ 30} Particularly notable in this case is that the appraiser, Richard Racek,
testified that the contract rent of the Lowe’s and Kohl’s parcels exceeded the market
rent derived from rent comparables. With respect to the Lowe’s parcel, Racek
opined that the prices for leased parcels were significantly higher than the prices
for unencumbered parcels because “properties that are leased generally sell for far
more per square foot than ones that are not leased.” Thus, the appraiser evidence
could, if properly considered, substantiate a finding that the sale price might not
indicate the value of the unencumbered fee-simple estate.
       {¶ 31} Accordingly, we vacate the BTA’s decision and remand the cause to
the BTA for further proceedings, including full consideration of the appraisal
evidence of the value of the parcels at issue. To the extent that the BTA adopts an
allocated sale price on remand, the BTA shall also give full consideration to the
propriety of the allocation in light of all the evidence in the record. But the BTA
shall decide the case based on the existing record and not receive new evidence.
Bronx Park, ___ Ohio St.3d ___, 2018-Ohio-1589, ___ N.E.3d ___, ¶ 13.
                                 IV. Conclusion
       {¶ 32} For the foregoing reasons, we vacate the BTA’s decision and remand
for further proceedings in accordance with this opinion.
                                                                   Decision vacated
                                                               and cause remanded.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, DEWINE, and
DEGENARO, JJ., concur.
       FISCHER, J., concurs in judgment only.
                               _________________
       The Gibbs Firm, L.P.A., Ryan J. Gibbs, and Geoffrey N. Byrne, for
appellant Beavercreek Towne Station, L.L.C.




                                         11
                             SUPREME COURT OF OHIO




       Vorys, Sater, Seymour & Pease, L.L.P., Karen H. Bauernschmidt, Nicholas
M.J. Ray, and Steven L. Smiseck, for appellants Beavercreek Towne Station,
L.L.C., and Kohl’s Illinois, Inc.
       Rich & Gillis Law Group, L.L.C., and Kimberly G. Allison, for appellee
Beavercreek City School District Board of Education.
                               _________________




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