[Cite as DCWI-77, L.L.C. v. Montgomery Cty. Aud., 2012-Ohio-728.]




       IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

DCWI-77, LLC                                           :

        Plaintiff-Appellant                            :            C.A. CASE NO.    24649

v.                                                     :            T.C. NO.   2009CV9260

MONTGOMERY COUNTY AUDITOR,                             :            (Civil appeal from
et al.                                                              Common Pleas Court)

        Defendants-Appellees                           :

                                                       :

                                           ..........

                                          OPINION

                        Rendered on the          24th        day of       February    , 2012.

                                           ..........

RICHARD B. REILING, Atty. Reg. No. 0066118, 5045 N. Main Street, Suite 320D,
Dayton, Ohio 45415
      Attorney for Plaintiff-Appellant

LAURA G. MARIANI, Atty. Reg. No. 0063204, Assistant Prosecuting Attorney, 301
                  th
W. Third Street, 5 Floor, Dayton, Ohio 45422
      Attorney for Defendants-Appellees

                                           ..........

FROELICH, J.

        {¶ 1} DCWI-77, LLC, appeals from a judgment of the Montgomery County

Court of Common Pleas, which affirmed the decision of the Montgomery County

Board of Revision (“BOR”) as to the value of its residential property located at 4838
                                                                                    2

Loxley Drive in Dayton, Ohio.

      {¶ 2} DCWI-77 purchased the property from the Department of Housing

and Urban Development (“HUD”) in December 2008; the sale price was $50,200.

The Montgomery County Auditor appraised the property for the 2008 tax year at

$87,210.

      {¶ 3} In March 2009, DCWI-77 filed a complaint against the valuation of the

Loxley property for the 2008 tax year; at the same time, DCWI-77 filed complaints

against the valuation of numerous other properties it owned in the area.         The

Loxley complaint listed the property’s recent purchase price as $50,200, but it

asserted that the fair market value of the property was $73,563, an amount that

reflected the prior appraisal by the county auditor.      In other words, DCWI-77

sought to have the BOR modify the value from the newly assessed value of

$87,210 to the previously assessed value of $73,563, rather than to the sale price
               1
of $50,200.        Following a hearing on DCWI-77’s complaint, the BOR left the

assessed value of property at $87,210.

      {¶ 4} DCWI-77 appealed to the court of common pleas. DCWI-77

requested a hearing in the trial court, arguing that “the value of the property was no

more than the previous appraised value [$73,563] as the property certainly did not

increase in value during the recent economic downturn.” On appeal to the trial

court, DCWI-77 relied on “the sale at arm’s length between a willing seller [HUD]


           1
           In its notice of administrative appeal, DCWI-77 stated that the market
  value of the property was $67,000. The reason for this discrepancy is unclear,
  but DCWI-77 repeatedly asserted in other documents, including its complaint,
  that it believed the property should be valued at $73,563.
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and a willing buyer [DCWI-77],” and argued that the auditor was required to

consider the sale price to be the true value for taxation purposes.          The court

rejected DCWI-77’s claim and affirmed the BOR’s decision valuing the property at

$87,210 for tax year 2008.

       {¶ 5} DCWI-77 appeals, raising two assignments of error.

       I. THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE

       APPELLANT HAD RAISED A REBUTTABLE PRESUMPTION THAT

       TRUE VALUE OF THE REAL PROPERTY WAS THE SALE PRICE.

       {¶ 6} DCWI-77 contends that the trial court erred in failing to value the

Loxley property at an amount lower than the amount assessed by the auditor and

the BOR.

       {¶ 7} For tax purposes, the county auditor must determine the “true value”

of each parcel of real estate from the best sources of information available, in

accordance with the rules prescribed by R.C. Chapter 5713 and R.C. 5715.01 and

with “uniform rules and methods of valuing and assessing real property as adopted,

prescribed, and promulgated by the tax commissioner.” R.C. 5713.03; Park Place

Properties, LLC v. Bd. of Revision of Miami Cty., 2d Dist. Miami No. 2001-CA-35,

2002 WL 242707, *4 (Feb. 15, 2002). With regard to true value, R.C. 5713.03

further provides that

       if such tract, lot, or parcel has been the subject of an arm’s length sale

       between a willing seller and a willing buyer within a reasonable length

       of time, either before or after the tax lien date, the auditor shall

       consider the sale price of such tract, lot, or parcel to be the true value
                                                                                    4

         for taxation purposes.

         {¶ 8} In applying these statutes, the Supreme Court of Ohio has

“recognized a rebuttable presumption that the sales price reflects the true value of

property,” but has also acknowledged that this presumption goes hand-in-hand with

a rebuttable presumption “that the sale has met all the requirements that

characterize true value,” including that the sale was made at arm’s length.

Cincinnati School Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 78 Ohio St.3d 325,

327, 677 N.E.2d 1197 (1997).         An arm’s-length sale is characterized by the

following elements: “it is voluntary, i.e., without compulsion or duress; it generally

takes place in an open market; and the parties act in their own self-interest.”

Walters v. Knox County Bd. of Revision, 47 Ohio St.3d 23, 25, 546 N.E.2d 932

(1989). “[I]f evidence is introduced that the sale did not reflect true value, and

more specifically, that the sale was not an arms-length transaction, the rebuttable

presumption [that the sale price reflects the true value] either disappears or never

arises.” Park Place Properties at *4, citing Cincinnati Bd. of Edn. v. Hamilton Cty.

Bd. of Revision, supra, at 327.

         {¶ 9} The taxpayer has the burden of proving entitlement to a decrease in

valuation, and “the auditor has no corresponding burden to defend its initial

valuation until the taxpayer has presented credible, probative evidence of the right

to a reduction.” Park Place Properties at *13, citing Murray & Co. Marina, Inc. v.

Erie Cty. Bd. of Revision, 123 Ohio App.3d 166, 174, 703 N.E.2d 846 (6th Dist. Erie

1997).

         {¶ 10} On an appeal from a decision of a board of revision, the trial court
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independently weighs and evaluates the evidence presented to make a

determination regarding the valuation of a property; a trial de novo by the court of

common pleas is not required, but the court may consider additional evidence

submitted by the parties. R.C. 5717.05; Black v. Bd. of Revision of Cuyahoga

Cty., 16 Ohio St.3d 11, 14, 475 N.E.2d 1264 (1985). The common pleas court

then independently values the property, and its decision is not to be reversed

absent an abuse of discretion. Siebenthaler Co. v. Montgomery Cty. Bd. of

Revision, 74 Ohio App.3d 103, 105, 598 N.E.2d 78 (2d Dist. Montgomery 1991),

citing Black, 16 Ohio St.3d 11. If the trial court finds that the evidence on which

the BOR relied was not reliable or probative, it may reject the BOR’s conclusion.

Berner v. Sodders, 2d Dist. Clark No. 2010 CA 40, 2010-Ohio-4914, ¶33.

      {¶ 11} DCWI-77’s complaint listed the 2008 sale price as $50,200.           A

settlement statement attached to the complaint indicated that the property, a

single-family dwelling, was purchased from HUD at that price.       A “Comparable

Sale Analysis Report” was also attached to the complaint, which compared the

Loxley property to five other properties that sold in 2007. All of the comparable

properties presented on the report sold for more than $100,000.

      {¶ 12} At its hearing, the BOR considered complaints against the valuation of

eleven properties owned by DCWI-77, which were apparently in the same general

area. DCWI-77 discussed its properties collectively; no testimony was specifically

addressed to the Loxley property. DCWI-77’s agent, Scott Wright, testified that the

average price of the eleven homes was $67,500, which was almost $20,000 less

than the average value assessed by the county. Wright also presented evidence
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of sales that he alleged to be comparable in Miami Township and Kettering in 2007

and 2008, asserting that “the values that we’re asking for certainly can seem more

in line with the actual values versus where the county currently has the values at.”

Based on his analysis of the data, Wright argued that “these properties should be

valued * * * at sixty-seven and seventy-five. At the very least they shouldn’t raise.”

 No evidence was presented at the hearing in favor of the county’s valuation.

      {¶ 13} As a preliminary matter, we will address DCWI-77’s argument that its

introduction of evidence of the sale price created a rebuttable presumption that the

sale price was the true value of the property, which shifted the burden to the county

to show that the sale was not an arm’s length transaction or otherwise did not

represent the true value. Because the county did not present any evidence in

support of its valuation, DCWI-77 argues that the county failed to rebut the

presumption that the sale price reflected the true value.      The record, however,

does not support this conclusion. DCWI-77 did not argue before the BOR that

$50,200 was the true value of the Loxley property. In its complaint, it asserted that

$73,563 was the fair market value of the property, and its agent argued at the

hearing that the value (of each of the disputed properties) was between

“sixty-seven and seventy-five” thousand dollars.        There is no evidence that

DCWI-77 asked the BOR to treat $50,200 as the true value of the property, and its

complaint certainly did not put the county on notice of such a claim. Based on the

record before us, it appears that DCWI-77 advanced this argument for the first time

on appeal to the court of common pleas.         Under these circumstances, where

DCWI-77’s own complaint asserted that the true value of the property was
                                                                                                                                7

significantly higher than the sale price, we cannot conclude that the county had the

burden to rebut any statutory presumption that the sale price was the true value of

the property.

        {¶ 14} Based on the record from the BOR, the trial court concluded that

DCWI-77 had:

                   not presented competent and probative evidence to make its

        case [about the Loxley property].                          [DCWI-77] has not cited to the
                                                                  2
        transcript to show that Mr. Walther or Mr. Wright testified that the

        correct value for this specific property was the sale price of $50,200.

        There is no testimony that the sale was an arms length transaction.

        The Court has reviewed the transcript in its entirety and has failed to

        find any testimony to this effect. Further, [DCWI-77] has failed to

        present competent and probative evidence that the property should

        be valued at $73,563. [DCWI-77] has not sustained its burden of

        persuasion. Review of the transcript of the hearing herein does not

        disclose any examination of the appraiser for the Auditor which

        causes his method or conclusion to come into question.

        {¶ 15} The trial court provided a reasonable basis for its conclusion that

DCWI-77 had failed to demonstrate that it was entitled to have the property valued

at a lesser amount or, specifically, at $73,563. We find no basis to disturb its

conclusion.


            2
              In the transcript, much of the testimony at the hearing before the BOR is attributed to one or more “unidentified
  speaker[s];” other testimony is attributed to Wright. The transcript does not contain any testimony attributed to “Mr. Walther.”
                                                                                  8

       {¶ 16} The first assignment of error is overruled.

       II.      THE TRIAL COURT ERRED BY FAILING TO ADOPT THE

                APPELLANT’S VALUATION OR IN THE ALTERNATIVE IN

                FAILING TO SET A HEARING TO DETERMINE THE TRUE

                VALUE OF THE REAL PROPERTY.

       {¶ 17} The second assignment of error duplicates some of the arguments

raised in the first assignment; we have addressed those arguments. However, this

assignment presents an additional argument that the trial court should have “set a

hearing to determine the true value of the Real Property.”

       {¶ 18} As we stated above, a trial de novo by the court of common pleas is

not required in an appeal from a BOR decision; the court “may hear the appeal on

the record and the evidence * * * submitted, or it may hear and consider additional

evidence.” R.C. 5717.05; see also Black v. Bd. of Revision of Cuyahoga Cty.,

supra, at 14.

       {¶ 19} DCWI-77 has advanced no specific argument in support of its

assertion that the trial court should have held a hearing, and it did not suggest to

the trial court and has not suggested to us what additional evidence it would have

offered at such a hearing. We cannot conclude on this record that the trial court

abused its discretion in failing to take additional evidence.

       {¶ 20} The second assignment of error is overruled.

       {¶ 21} The judgment of the trial court will be affirmed.

                                      ..........

FAIN, J. and HALL, J., concur.
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Copies mailed to:

Richard B. Reiling
Laura G. Mariani
Hon. Timothy N. O’Connell
