                            District of Columbia
                             Court of Appeals
No. 15-CV-959
                                                                      FEB - 2 2017
CHH CAPITAL HOTEL PARTNERS, LP,
                                                 Appellant,

     v.                                                              CVT-9455-09


DISTRICT OF COLUMBIA,
                                                 Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                   Civil Division


       BEFORE: FISHER and BLACKBURNE-RIGSBY, Associate Judges; and NEBEKER,
Senior Judge.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

              ORDERED and ADJUDGED that the judgment of the Superior Court is
affirmed.


                                          For the Court:




Dated: February 2, 2017.

Opinion by Associate Judge John Fisher.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CV-959                           2/2/17

                CHH CAPITAL HOTEL PARTNERS, LP, APPELLANT,

                                        V.

                       DISTRICT OF COLUMBIA, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CVT-9455-09)

                      (Hon. John M. Campbell, Trial Judge)

(Argued December 19, 2016                            Decided February 2, 2017)

      Steven W. Zoffer for appellant.

      Mary L. Wilson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for
appellee.

     Ralph A. Taylor, Jr., and Matthew Wright filed a brief for amicus curiae
Omni Shoreham Corporation in support of appellant.

      Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER,
Senior Judge.
                                         2

      FISHER, Associate Judge:       Every year the District of Columbia (“the

District”) estimates the market value of real property to assess taxes.1 Appellant

CHH Capital Hotel Partners, LP (“CHH”), owner of the Capital Hilton Hotel

(“Capital Hilton” or “the Hotel”), contends that the Superior Court erroneously

sustained an assessment for the 2009 tax year that failed to properly distinguish the

value of the Hotel’s real property from the value of its other business components.

We hold that the trial court did not err in concluding that CHH had failed to carry

its burden of proof. Finding no reversible error with respect to the other rulings

challenged on appeal, we affirm.



                             I.     Factual Background



      The Capital Hilton, located at 1001 16th Street, Northwest, is a 14-story,

full-service hotel offering, among other things, 544 guestrooms, a restaurant,

meeting spaces, and a health club. The hotel building was originally constructed

and opened for business during the Second World War. CHH purchased the Hotel

in 2007.

      1
            D.C. Code § 47-820 (a)(3) (2001) (“The assessed value for all real
property shall be the estimated market value of such property as of the valuation
date . . . .”); 9 DCMR §§ 305.1 (“All real property shall be assessed on an annual
basis.”), 305.3 (“‘[A]ssess’ means to value real property for tax purposes.”).
                                        3



      Larry Hovermale, an assessor with the District’s Office of Tax and Revenue

(“OTR”), conducted the 2009 tax year assessment of the Hotel, valuing its real

property—the land and improvements on the land 2—as of the January 1, 2008,

valuation date. Using the income capitalization approach,3 Mr. Hovermale initially

assessed the real property at $124,937,100. CHH administratively appealed the

assessment, and OTR sustained Mr. Hovermale’s valuation.



      CHH next appealed to the Board of Real Property Assessments and Appeals4

(“BRPAA” or “the Board”). Prior to the Board’s hearing on the matter, OTR

accepted additional information, including an income and expense report for the

2008 calendar year and a CHH plan forecasting substantial capital outlays for the

      2
          D.C. Code § 47-802 (2001) (defining “real property” as “real estate
identified by plat . . . together with the improvements thereon”).
      3
         Under District regulations, assessors may apply one or more of the three
generally recognized approaches to valuation—the comparable sales approach, the
cost approach, or the income capitalization approach. 9 DCMR § 307.2; see also
Safeway Stores v. District of Columbia, 525 A.2d 207, 209 (D.C. 1987) (holding
that District assessors “must consider all three and have a reasoned basis for
picking one over the other two”).
      4
          The legislature has since abolished the Board and established a
replacement body: the Real Property Tax Appeals Commission. See D.C. Code
§ 47-825.01 (2001), repealed by D.C. Law 18-363, § 2 (b)(2), 58 D.C. Reg. 963,
963 (2011).
                                         4

next five years. Mr. Hovermale updated his income and expense projections,

accepted and discounted some—but not all—of the intended capital expenditures,

and submitted to the Board a revised assessment of $118,701,607. Explaining only

that it had “accept[ed] the [OTR] recommendation for a reduced value,” the Board

nevertheless lowered the assessment to $113,148,379. CHH paid the taxes levied

against the Hotel and appealed to the Superior Court, seeking a reduction in the

assessed value and a refund of excess taxes paid.



      The taxpayer bears the burden of proving that the District’s assessment is

“incorrect or illegal, not merely that alternative methods exist giving a different

result.” Safeway Stores, 525 A.2d at 211; see also Super. Ct. Tax R. 12 (b). At a

four-day trial, CHH presented testimony from real estate appraisal expert David

Lennhoff, who criticized the District’s use of a form of the income capitalization

method known as the “Rushmore Approach”5 (for its creator Stephen Rushmore)

and championed an alternative—one he had developed—called the “Business

      5
         OTR assessor David Clark testified that Mr. Hovermale’s methodology
appeared to be consistent with the Rushmore Approach. In its order, the trial court
stopped short of declaring that the District had, in fact, faithfully applied the
Rushmore Approach as described in valuation literature, noting only that the
method followed by the District was “patterned on the Rushmore Approach” and
that “the District purported to follow what is generally called the ‘Rushmore
Approach.’” For simplicity’s sake, we nonetheless refer to Mr. Hovermale’s
assessments as applications of the Rushmore Approach.
                                         5

Enterprise Approach” (“BEA” also known as the “Lennhoff Approach”). Using

BEA, Mr. Lennhoff valued the Hotel’s real property at $95,700,000. In conducting

his analysis, he assumed that the Hotel would undergo major renovations planned

for 2008 even though, at the time he assessed the property, he was aware that CHH

did not, in fact, renovate as projected. Since on the valuation date, a prospective

buyer would not have known about the ultimate departure from the renovation

plans, Mr. Lennhoff thought it inappropriate to consider the actual income

collected and expenses incurred after the valuation date.



      David Clark, an assessor with OTR, described the Rushmore-based process

Mr. Hovermale had apparently used to assess the Capital Hilton.6 Rafael Menkes,

a major properties assessor with OTR—who the court permitted to testify as an

expert for the District in spite of CHH’s contention that he was not sufficiently

experienced in hotel valuation—testified that, using the Rushmore method, he

valued the Hotel’s real property at $126,432,000. He also explained the logic

underlying Mr. Hovermale’s assessments and pointed out flaws in the

methodology backed by Mr. Lennhoff.


      6
         Mr. Hovermale had retired from OTR and did not testify at trial. Prior to
testifying, Mr. Clark reviewed the OTR file on the 2009 tax year assessment of the
Capital Hilton.
                                          6



      The testimony revealed that both the Rushmore Approach and BEA use

historical operating revenue and expenses to project a company’s future net

income. 7 Further, under both methods, appraisers identify and deduct income

derived from intangible property and personal property to isolate income
                                 8
attributable to real property.       The approaches diverge on the details of

implementation. With regard to intangible assets, the Rushmore Approach deducts


      7
        In District of Columbia v. Rose Assocs., 697 A.2d 1236 (D.C. 1997), we
explained:

             Th[e income capitalization] method of valuation can be
             summarized by the formula V = I/R, where V is the
             present value of the property, I is the annual income
             generated by the property, and R is the capitalization rate.
             R represents a percentage ratio between the annual
             income expected to be generated by a building and the
             price a ready, willing and informed buyer would be
             willing to pay for it in [a] given year.

Id. at 1236 n.1.
      8
         An operating hotel is a unique form of real estate with four distinct
components: land, improvements, personal property, and the going business (or
intangible property). Because only the value of the land and improvements is
properly considered when taxing real property, the income attributable to the other
components must be subtracted from I to arrive at an income attributable only to
real property. The formula described in Rose Assocs. can be modified as follows:
V(RP) = (I – I(PP) – I(GB))/R, where V(RP) is the value of real property, I(PP) is
the income associated with personal property, and I(GB) is the income associated
with the going business. The parties agreed at trial that the Hotel should be
assessed under this general approach.
                                          7

management and franchise fees and, if necessary, adjusts for any residual

intangibles. BEA takes these deductions and another for business start-up costs.

Mr. Lennhoff contended at trial that the business start-up deduction removes from

the income stream unaccounted-for costs associated with getting a hotel up and

running—assembling and training a workforce, advertising a new business, and the

like—which remain in the value of the property. He maintained that such a

deduction is necessary even when valuing a property like the Capital Hilton, which

has been operating since the 1940s. Devotees of the Rushmore Approach insist

that hotels are constantly in “start-up mode,” acquiring new customers regularly

and facing high staff turnover. Accordingly, any relevant costs, they argue, are

already captured in the hotel’s recurring expenses and, thus, a separate deduction

for business start-up costs is unnecessary.



      With regard to the personal property component, appraisers recognize that a

hotel derives income from its furniture, fixtures, and equipment (“FF&E”). 9 Both

the Rushmore Approach and BEA advocate two types of deductions to remove

income derived from FF&E from the total income stream: one type adjusts for

      9
         The logic is that when a customer rents a hotel room, she pays not only to
use the physical space—as with, for example, rental of an unfurnished apartment—
but also to use the hotel’s furniture, lighting, kitchen, laundry equipment, and the
like.
                                         8

return of FF&E (essentially, return of the amount originally invested in a hotel’s

FF&E) and the other accounts for return on FF&E (a hotel’s profit on the

investment in FF&E currently in place). Followers of the Rushmore Approach

calculate return of FF&E based on a hotel’s annual contribution to a reserve used

to regularly replace furnishings. They determine return on FF&E by multiplying

the depreciated cost to replace the FF&E currently in place by an estimated rate of

return on that investment.



      Mr. Lennhoff tackles FF&E differently. In calculating income attributable

to FF&E for the Capital Hilton, he multiplied the value of the Hotel’s personal

property, amortized over its useful life, by an estimated rate of return 10 to derive

annual income for both return of and return on FF&E. According to Mr. Lennhoff,

appraisers should not use the replacement allowance to estimate return of FF&E

because the replacement allowance is “just an ongoing operating expense,” and “a

completely different concept” from return of FF&E.




      10
          Mr. Lennhoff used hotel mortgage rates as a base then added a premium
to arrive at an estimated rate of return on the Hotel’s personal property.
                                          9

      Having calculated a business’s net operating income attributable to real

property, appraisers next divide by a capitalization rate,11 and then determine the

present value of portions of the income stream that will be received in the future, to

arrive at the present-day capitalized value of net operating income derived from

only real property (“capitalized NOI (RP)”).           In his revised assessment,

Mr. Hovermale calculated a capitalized NOI (RP) of $128,786,112. Mr. Lennhoff

and Mr. Menkes came up with capitalized NOI (RP) of $126,668,990 and

$126,431,842, respectively.



      Mr. Hovermale and Mr. Lennhoff made further adjustments after

determining capitalized NOI (RP).       Mr. Hovermale deducted $9,786,544, the



      11
          The capitalization rate is “a number representing the percentage rate that
taxpayers must recover annually to pay the mortgage, to obtain a fair return on the
taxpayers’ equity in the property, and to pay real estate taxes.” Rock Creek Plaza-
Woodner Ltd. P’ship v. District of Columbia, 466 A.2d 857, 859 (D.C. 1983). We
have noted in prior cases that “the determination of an appropriate capitalization
rate for a particular year for a particular property is a fact-specific determination
not susceptible to a singular definition.” Rose Assocs., 697 A.2d at 1238. CHH
does not appear to be challenging the trial court’s finding that the capitalization
rate used by the District was “properly derived.” Accordingly, we deem such an
argument to have been waived. See McFarland v. George Washington Univ., 935
A.2d 337, 351 (D.C. 2007) (“Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”
(quoting Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 554 n.9 (D.C.
2001))).
                                       10

present value of some of CHH’s planned capital expenditures. 12 Mr. Lennhoff

deducted $28,600,000 to account for renovations planned for 2008. At trial, he

explained that this post-capitalization deduction included both renovation

expenditures related directly to the real estate and those related to personal

property. But he contended that the deduction was necessary because “[y]ou can’t

get th[e level of projected] revenue if you don’t do the renovation.” Mr. Menkes

testified that nearly $16 million of Mr. Lennhoff’s $28.6 million in renovation

expenses double-counted FF&E that had already been deducted before

capitalization.



      Unpersuaded by Mr. Lennhoff’s critique of the District’s approach, Judge

Campbell concluded that CHH had not carried its burden of proving that the

District’s assessment was incorrect or illegal and had not shown that BEA was

clearly superior to the Rushmore Approach. To the contrary, Judge Campbell

deemed the District’s “well-established and broadly accepted” method “well-

conceived to yield a fair and accurate estimate of market value” and “fully

supported by the evidence.”




      12
          It appeared to Mr. Clark that Mr. Hovermale did not deduct expenses that
he felt should not fall under the category of capital expenditures.
                                         11

      First, Judge Campbell found it “interesting” that some of Mr. Lennhoff’s

underlying assumptions and projections were proven inaccurate by the Hotel’s

actual income and expenses after January 1, 2008 (the valuation date). Most

significantly, renovations did not begin in 2008. And although these differences

did not prove “materially important to the Court’s analysis,”13 “the fact that things

turned out differently may reveal a flaw in the assumption itself.” Then, focusing

primarily on the differences between the Rushmore Approach and BEA, he found

the extra deductions advocated by Mr. Lennhoff unwarranted. Judge Campbell

agreed with Mr. Menkes and the District that the additional FF&E deduction

double-counted the value of personal property, and he “d[id] not find . . . plausible

on either a practical or theoretical level” Mr. Lennhoff’s contention that an

assessor must calculate and deduct start-up costs incurred, in this case more than

six decades earlier. He also acknowledged that Mr. Menkes had relatively scant

formal training and experience valuing hotels like the Capital Hilton and remarked

that he “g[a]ve[] little weight to [Mr. Menkes’s] expert opinion.” Judge Campbell

sustained the District’s $118,701,067 assessment, but, reasoning that “the taxpayer

should be no worse off than if [it] had not appealed to this Court[,]” declined to

upwardly adjust BRPAA’s assessment of $113,148,379.

      13
         Judge Campbell took note of the “relatively small” difference between
Mr. Hovermale’s and Mr. Lennhoff’s capitalized NOI (RP) before final
adjustments.
                                         12



                                   II.   Analysis



   A.      The Trial Court Did Not Err in Finding That CHH Failed to Meet
           Its Burden of Proving the District’s Assessment Incorrect or Illegal



        In reviewing decisions of the Superior Court in civil tax cases, as in other

civil cases tried without a jury, “[w]e must accept the judge’s findings of fact

unless they are clearly erroneous, and we will not set aside a conclusion of law

unless it is plainly wrong or without evidence to support it.” District of Columbia

v. Wash. Sheraton Corp., 499 A.2d 109, 111 (D.C. 1985); see also D.C. Code § 47-

3304 (a) (2001). “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Wolf v. District of

Columbia, 597 A.2d 1303, 1308 (D.C. 1991) (“Wolf I”) (quoting Anderson v.

Bessemer City, 470 U.S. 564, 574 (1985)). Moreover, we “will not upset the

ultimate legal conclusion of the tax court when its outcome necessarily follows

from its findings of fact.” Hospitality Temps Corp. v. District of Columbia, 926

A.2d 131, 134 (D.C. 2007).



        CHH argues that the trial court erred as a matter of law in approving an

assessment methodology that did not properly isolate the value of the Capital
                                         13

Hilton’s real property from the value of its other business components. In other

words, it asserts that the assessment was illegal because it taxed more than real

property. The District contends that the issues before the trial court were primarily

factual in nature, and that the trial court did not clearly err in resolving in the

District’s favor conflicting evidence on how best to value the Hotel’s real property.



      For three combined reasons, we agree with the District’s framing of the

issues. First, the Superior Court evaluates appeals from real property assessments

de novo, affording no deference to OTR’s or BPRAA’s prior assessments. District

of Columbia v. N.Y. Life Ins. Co., 650 A.2d 671, 672 (D.C. 1994); see also D.C.

Code §§ 47-825.01 (repealed 2011), 47-3303. Though the taxpayer bears the

burden of proving the District’s assessment “incorrect or illegal,” Safeway Stores,

525 A.2d at 211, the “court’s task is not to conduct a review of agency action.

Rather, the court must make an independent valuation of the property on the basis

of the evidence presented at trial.” N.Y. Life Ins. Co., 650 A.2d at 672. The trial

court is the fact-finder to whom we defer on factual matters.



      Second, many courts have historically regarded valuation of property as a

factual issue. See, e.g., CSX Transp. v. Ga. State Bd. of Equalization, 552 U.S. 9,

19 (2007) (“Valuation of property, though admittedly complex, is at bottom just
                                         14

‘an issue of fact about possible market prices.’” (quoting Suitum v. Tahoe Reg’l

Planning Agency, 520 U.S. 725, 741 (1997))); Crawford v. Helvering, 63 App.

D.C. 140, 141, 70 F.2d 744, 745 (1934) (“[T]here is no definite formula by which

to determine fair market value as that term is used in the tax statutes.        The

question, as all agree, is necessarily one of fact to be determined by the

evidence.”). A review of our civil tax cases indicates that we have treated real

property valuation questions this way. See, e.g., Bender v. District of Columbia,

804 A.2d 267, 268–69 (D.C. 2002) (reviewing the trial court’s valuation

determination for clear error); Wash. Sheraton Corp., 499 A.2d at 112 (same);

District of Columbia v. Burlington Apartment House Co., 375 A.2d 1052, 1055

(D.C. 1977) (same); see also Square 345 Assocs. Ltd. P’Ship v. District of

Columbia, 721 A.2d 963, 966 (D.C. 1998) (“It is within the trial court’s broad

discretion as the finder of fact to sift through the evidence and arrive at an

independent valuation.”).



      And third, this court has long adhered to the view that “[c]ontradictory

expert testimony presents an issue of fact for the factfinder.”        Designers of

Georgetown, Inc. v. E.C. Keys & Sons, 436 A.2d 1280, 1280 (D.C. 1981); see also,

e.g., Burke v. Scaggs, 867 A.2d 213, 220 (D.C. 2005) (“[O]ne of the essential

functions of the fact-finder is to resolve discrepancies between witnesses, including
                                         15

experts.”). In so doing, we have recognized that “the trial court is in the best

position to evaluate the experts’ qualifications, demeanor, experience, reasoning,

and testimony.” Rock Creek Plaza-Woodner Ltd. P’ship, 466 A.2d at 860. In light

of those underlying principles, it would be peculiar to call the trial court’s inquiry

here—one resolving conflicting expert opinions to estimate the market value of a

particular hotel property given its unique characteristics—anything other than

factual in nature.



      Moreover, we find no basis for the rigid, matter-of-law ruling CHH requests.

The District’s real property taxation scheme affords assessors great—though not,

of course, boundless—flexibility in selecting an appropriate methodology to derive

estimated market value. See Young Women’s Christian Ass’n of Nat’l Capital

Area, Inc. v. District of Columbia, 731 A.2d 849, 851 (D.C. 1999) (observing that

the District is “given sizeable discretion in ‘choosing the method or approach for

an assessor to use in estimating the market value of a particular property’” (quoting

Wolf I, 597 A.2d at 1308)). Regulations provide that assessors must “take into

account all available information which may have a bearing on the market value of

real property,” including specifically enumerated factors. 9 DCMR § 307.1. They

must also consider using the three basic approaches to estimating market value and
                                         16

must have a reason for picking a particular method.14 Safeway Stores, 525 A.2d at

209. Little else is required, and, thus, a trial court presented with the District’s

assessments as evidence of the market value of a particular property has little

reason to expect adherence to one school of thought or another. We can imagine

good reasons why the legislature might favor flexibility in this regard. Indeed, the

vigorous debate at the trial level of this case reveals that technical methodology

and best practices are subject to challenge and change over the years. In any event,

the legislature is surely not barred from adopting stringent rules for assessors and

could have done so if it wanted. We decline to act in its stead.



      Having settled the appropriate standard of review, we move to CHH’s

specific claims of error. We hold that the trial court did not clearly err in finding

that the District’s valuation method “isolate[d] the different categories of value and

remove[d] those unrelated to the land and the capital improvements . . . in a logical

and generally accepted manner.” Nor did the trial court clearly err in finding

Mr. Lennhoff’s approach lacking in this case because, in the court’s opinion, it

double counted FF&E and unnecessarily deducted business start-up costs. We find

      14
           An assessor may not even be obligated to adhere to one of the three
generally accepted methods of valuation, as the regulation provides that assessors
may use “any other method the Deputy Chief Financial Officer deems necessary to
arrive at estimated market values.” 9 DCMR § 307.3.
                                          17

nothing impermissible about the trial judge’s view of the evidence, and, therefore,

we must defer to that view. Wolf I, 597 A.2d at 1308.



                                 B.     Other Issues



      CHH raises five additional issues, which we address more summarily. First,

CHH argues that because the District did not defend BRPAA’s $113,148,379

assessment, the trial court should have required both the District and CHH to prove

their respective assessments correct. We disagree. This court has held that “[o]nce

the case has come before the Superior Court, the District is entitled to attempt to

establish that the value of the property is in excess of the assessed value.”

N.Y. Life Ins., 650 A.2d at 673. To do so, the District must necessarily argue that

the Board’s assessment is in some way lacking. Such an argument in no way

relieves the taxpayer of the obligation of showing that the District’s official

assessment, on which the tax obligation was based, was incorrect or illegal. See id.

at 672 (“[I]f the taxpayer cannot establish that the assessment is incorrect or illegal,

then the taxpayer is bound by it; the assessment stands as to him.”). The District’s

decision to argue that BRPAA’s assessment was too low did not constitute

abandonment. See Wolf I, 597 A.2d at 1312 (finding no abandonment in similar

circumstances).
                                        18



      Second, CHH contends that the trial court incorrectly described the burden

at trial. The trial court stated that CHH had to prove that Mr. Hovermale’s revised

valuation of $118,701,067 was derived through an incorrect or illegal methodology

to prevail; CHH maintains that the assessment at issue at trial was the Board’s

$113,148,379 valuation. We are satisfied that any imprecision in the trial court’s

articulation of CHH’s burden was harmless.



      In conducting harmless error analysis in civil cases, we consider whether a

defect in the proceeding “affect[ed] the substantial rights of the parties.” Super.

Ct. Civ. R. 61; see also Super. Ct. Tax R. 3 (applying Super. Ct. Civ. R. 61 in

actions brought in the Tax Division of the Court). Here, there is no indication that

CHH’s substantial rights were affected. CHH’s witnesses discussed at length

Mr. Hovermale’s assessments, as submitted to the Board. Though, regrettably,

there is no indication why the Board departed below Mr. Hovermale’s revised

assessment, CHH had the tools to attack both the $113,148,379 and $118,701,607

valuations. The trial court found that CHH had not succeeded in undermining the

District’s methodology—the same methodology apparently underlying both

Mr. Hovermale’s revised assessment and the Board’s assessment—–and found

Mr. Lennhoff’s alternative approach lacking. Perhaps more significantly, the trial
                                          19

court, considering all of the evidence as to value of the real property de novo,

affirmatively accepted Mr. Hovermale’s $118,701,607 valuation, but nonetheless

declined to increase the assessment beyond the Board’s figure of $113,148,379.

CHH suffered no prejudice from the trial court’s framing of the burden.



      Third, CHH claims that the trial court wrongly admitted expert testimony

from Mr. Menkes, an assessor with OTR who had only limited experience valuing

hotels of the sort at issue in this case. We have held that “[t]he trial judge has wide

latitude in the admission or exclusion of expert testimony and his [or her] decision

with respect thereto should be sustained unless it is manifestly erroneous.” Jones

v. United States, 990 A.2d 970, 977 (D.C. 2010) (alteration in original) (quoting In

re Melton, 597 A.2d 892, 897 (D.C. 1991) (en banc) (internal quotation marks

omitted)). Here, Mr. Menkes had an undergraduate degree in Finance and had

completed some postgraduate economics coursework, after which he worked for

more than four years as a stock broker. He had also spent nearly three years

managing a hedge fund before moving on to a career in real estate assessment. As

an assessor, he had worked for nearly ten years with the Los Angeles County,

California, assessor’s office, worked with the City of Los Angeles as a real estate

officer, and then moved on to OTR, where he had worked for nearly two years at

the time of trial. Mr. Menkes explained that he had valued about five hotels as an
                                        20

assessor with Los Angeles County, but nothing of the size of the Capital Hilton.

He also testified that he had attended a two-hour webinar on hotel valuation in

which Mr. Rushmore and Mr. Lennhoff discussed specific ways to value a hotel

and debated their respective approaches. We find no manifest error in the trial

judge’s admission of Mr. Menkes’s expert testimony.15



      Fourth,   CHH     claims   that   the   trial   judge   arbitrarily   discounted

Mr. Lennhoff’s expert testimony. A trial judge may reject the testimony of a

taxpayer’s expert if there is “some basis in the record to support the conclusion

‘that the evidence of the taxpayers’ witnesses is unworthy of belief.” Rock Creek

Plaza-Woodner Ltd. P’Ship, 466 A.2d at 859 (quoting Cullers v. Commissioner,

237 F.2d 611, 616 (8th Cir. 1956)). CHH contends that the trial court “disregarded

Mr. Lennhoff’s testimony because it thought Mr. Lennhoff took inappropriate

deductions, when in fact, Mr. Lennhoff was removing tangible and intangible

personal property from the value of the real estate in accordance with the law.”

We disagree. The trial court was not bound to agree with Mr. Lennhoff’s expert

opinion regarding the correct way to value this hotel’s real property. See Mann v.

      15
          It bears mention that Judge Campbell ultimately agreed that Mr. Menkes
had relatively scant formal training and experience valuing hotels like the Capital
Hilton and “g[a]ve[] little weight to [Mr. Menkes’s] expert opinion.”
Nevertheless, the court concluded that Mr. Menkes “shed valuable light on the
mechanics of both approaches, as well as on their differences.”
                                         21

Marshall, 227 A.2d 769, 771 (D.C. 1967) (“Although an expert may give an

opinion in his particular field, it is not controlling but is to be considered in

connection with all other evidence in the case. No rule of law compels the trier of

facts to be bound by the opinion of an expert and he need not surrender his own

judgment unless from all the evidence he finds the expert opinion to be correct.”)

(citations omitted); Urciolo v. Sachs, 62 A.2d 308, 309 (D.C. 1948) (“Rarely is

expert testimony as to value binding on the trier of facts and it is never binding

when inconsistent with other evidence in the case.”). Here, the trial court’s view is

supported by other record evidence which contradicts Mr. Lennhoff’s opinion.

Accordingly, we find nothing impermissible about the court’s failure to accept

Mr. Lennhoff’s view.



      Finally, CHH argues that the trial court abused its discretion by considering

the hotel’s actual operating revenue and expenses after the valuation date. The

trial court recognized that, “[s]trictly speaking,” an appraiser is not to consider

post-valuation-date facts in assessing a property. Neither the District nor CHH

points us to authority squarely addressing whether it is permissible for a trial judge

to use revenue and profit data as Judge Campbell did here: as a catalyst prompting

“re-examin[ation of] the bases of [an expert’s] assumptions . . . in light of the fact
                                        22

that [those assumptions] turned out to be wrong.” 16 Here, these considerations

were “not materially important to the Court’s analysis” as the court rejected

Mr. Lennhoff’s testimony for other reasons, as detailed above. Assuming without

deciding that the trial court erred in admitting and considering this evidence, we

find such error harmless.



                                 III.   Conclusion



      For the foregoing reasons, the judgment of the Superior Court is hereby



                                                  Affirmed.




      16
            We agree with CHH that the District overreads Wolf v. District of
Columbia, 611 A.2d 44 (D.C. 1992) (“Wolf II”). Wolf II commented only on the
use of actual income and expense data from the year after the valuation date to
derive a company’s stabilized net income. See id. at 48–50. It did not confer
“broad discretion to admit the 2008 data when reviewing the different assessments
at trial,” as the District asserts.
