[Cite as Brecksville-Broadview Hts. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 2016-Ohio-3166.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103015


    BRECKSVILLE-BROADVIEW HEIGHTS BOARD OF
               EDUCATION, ET AL.
                                                            APPELLEES

                                                      vs.

                     CUYAHOGA COUNTY BOARD OF
                          REVISION, ET AL.

                                                            APPELLEES

                            [Appeal By: TMMC OHIO, L.L.C.]


                                            JUDGMENT:
                                             AFFIRMED


                                    Administrative Appeal from the
                                     Ohio Board of Tax Appeals
                                        Case No. 2014–986

        BEFORE: E.A. Gallagher, J., Keough, P.J. and McCormack, J.
        RELEASED AND JOURNALIZED: May 26, 2016
ATTORNEYS FOR APPELLANT

William J. Day
Joseph A. Balbier
9100 South Hills Blvd., Suite 325
Broadview Heights, Ohio 44147

ATTORNEY FOR APPELLEE
BRECKSVILLE-BROADVIEW HEIGHTS BOARD OF EDUCATION

William E. Blackie III
Fisher & Phillips LLP
9150 South Hills Blvd., Suite 300
Broadview Heights, Ohio 44147

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY BOARD OF REVISION

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Reno J. Oradini
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE OHIO TAX COMMISSIONER

Mike DeWine
Ohio Attorney General
30 East Broad Street
Columbus, Ohio 43215
EILEEN A. GALLAGHER, J.:

        {¶1} Appellant TMMC Ohio, L.L.C. (“TMMC”) appeals from a decision of the

Board of Tax Appeals reversing the Cuyahoga County Board of Revision’s (“BOR”)

valuation, for tax purposes, of a parcel of vacant commercial property owned by TMMC

and reinstating the higher valuation of the property assessed by the Cuyahoga County

Fiscal Officer (the “Fiscal Officer”).      For the reasons that follow, we affirm the decision

of the Ohio Board of Tax Appeals (“BTA”).

Factual and Procedural Background

        {¶2} In February 2013, TMMC filed a complaint against the valuation of a 4.65

acre parcel of vacant commercial land located at 6250 Broadview Road, Broadview

Heights, in Cuyahoga County (the “subject property”), seeking a reduction in the valuation

of the property for tax year 2012. The Fiscal Officer had assigned a total value of

$729,200 to the subject property. TMMC had been the highest bidder for the property at

a public, absolute auction1 held in March 2012 and sought a reduction in the property’s

total true value for tax purposes to $368,500, the price it paid for the property in May

2012.       Appellee, the Brecksville-Broadview Heights Board of Education (“Board of

Education”), filed a counter-complaint seeking to maintain the Fiscal Officer’s valuation




        1
         An absolute auction is an auction where the sale is awarded to the highest bidder; there is no
reserve that sets a minimum required bid for the item to be sold.
of the property, asserting that “[r]ecent record sales, economic evidence and other

evidence that will be presented at hearing” supported the Fiscal Officer’s valuation.

       {¶3} In February 2014, the BOR held a hearing on the complaint and

counter-complaint. At the hearing, Anthony Ciocca, one of the members of TMMC, 2

testified regarding TMMC’s purchase of the subject property. He testified that he learned

the property was to be sold at auction when he saw a sign posted on the property,

approximately six months prior to the March 2012 auction date. The sign, a copy of

which was introduced at the hearing, indicated that the property was being “OFFERED

ABSOLUTE, REGARDLESS OF PRICE!” Ciocca stated that the sign referenced a

website, which provided additional information regarding the sale. Ciocca testified that

the auction was held at the Holiday Inn on Rockside Road in Independence, Ohio, that the

subject property was one of several properties for sale at the auction; and that there was “a

room full of people” bidding on the subject property. He indicated that TMMC’s winning

bid for the property was $335,000 and that there was a 10% fee assessed, resulting in a

total purchase price of $368,500.

       {¶4} In support of TMMC’s request for a reduction in the valuation of the subject

property, Ciocca submitted copies of the following documents related to TMMC’s

purchase of the property: a “purchaser’s statement” referencing the $368,500 purchase

price executed by Guardian Title & Guaranty Agency, Inc. (“Guardian Title”) and TMMC,

a statement of conditions of acceptance of escrow executed by Guardian Title (but not


       Ciocca indicated that the other members of TMMC were his brothers, Matt and Mike Ciocca.
       2
TMMC or the seller, Landspan Corp. (“Landspan”)), a limited warranty deed for the

property from Landspan to TMMC and a letter from Guardian Title to TMMC dated June

18, 2012, referencing the limited warranty deed and a title insurance policy.3 TMMC also

submitted several lists comparing the tax valuations of what Ciocca claimed were similar

neighboring properties, including several properties that had been sold at auction in 2011.

The BOR rejected Ciocca’s property comparisons, indicating, at the hearing, that the

neighboring properties’ tax values and the sales of other properties at auction did not

constitute probative evidence of the tax value of the subject property.

       {¶5} With respect to what TMMC planned to do with the subject property, Ciocca

claimed that TMMC “had some plans to build something on [the property],” but was

concerned that, based on the current tax valuation of the property, if it developed the

property, the taxes on the property would increase to such a level that “you’re not going to

be competitive.” He stated that “we have some opportunity here” but “we need to soften

things up for me in order to make it.” He further explained, “right now I feel if we could

have the taxes where we purchased it, we could take the handcuffs off, * * * get it where it

needs to be   * * * more competitive” and “make something there successful.”

       {¶6} In response to questions by the BOR and cross-examination by the Board of

Education, Ciocca stated that he knew very little about the subject property or the


       3
        At the conclusion of the hearing, the BOR requested that TMMC submit
copies of the purchase agreement and closing statement for the purchase of the
property to the BOR. Although TMMC later claimed that the “purchaser’s
statement” was the closing statement, there is nothing in the record that indicates
that any purchase agreement was submitted.
circumstances surrounding the offer of sale of the property. He testified that he had no

relationship with Landspan, the prior owner of the property, nor with the auctioneer of the

property. Ciocca indicated that he did not know why the property was being sold at

auction and that, other than to walk the property and to confirm no back taxes were owed

on the property, he did not know “anything about the property” and did no research on the

property prior to bidding on it at auction. Ciocca speculated that the prior owners, who he

claimed had owned the property since 1974, had “had their taxes quite significantly

increased [in 2007] because of the boom in the economy which * * * we know is no longer

there” and that “they didn’t want to hold the property any longer” due to the increased tax

burden. Ciocca stated that “[w]e liked the property for what it looked like,” that ‘[i]t

looked like a beautiful piece of land” and that that was TMMC’s “only concern” in

bidding on the property.

       {¶7} The Board of Education did not present any evidence at the hearing. It simply

cross-examined Ciocca regarding his lack of knowledge of the circumstances that led to

the sale of the property at an absolute auction.

       {¶8} In February 2014, the BOR granted TMMC’s request for a reduction in

valuation, reducing the total true value of the property to $368,500. In its oral hearing

worksheet and journal entry, the BOR indicated: “Complaintant [sic] provided testimony

and evidence that indicates 2012 sales was arms [sic] length.” Accordingly, the BOR

“revised [the] market value to [the] sales price” of the subject property.
       {¶9} The Board of Education filed an appeal with the BTA, arguing that the

purchase price of the property at auction did not provide a legal basis for reducing the

Fiscal Officer’s valuation of the property. The parties waived a hearing and agreed that

the appeal would be decided based on the statutory transcript and the parties’ briefs.

       {¶10} On April 13, 2014, the BTA issued its decision, reversing the BOR and

reinstating the Fiscal Officer’s original valuation. The BTA concluded that there was

“insufficient evidence” to demonstrate that the May 2012 auction sale was an arm’s-length

transaction and that the BOR’s reliance on the auction sale price as the basis for its

determination of the true value of the subject property for tax year 2012 was, therefore,

“improper.” The BTA further held that “in the absence of a qualifying sale, [TMMC] was

required, but failed, to provide a competent appraisal of the subject property, attested to by

a qualified expert, for the tax lien date in issue” and that “the remaining evidence in the

record * * * is not competent or probative of the subject [property]’s value.” TMMC

appealed the decision of the BTA, raising the following assignment of error for review:

       The Board of Tax Appeals (“BTA”) erred by setting the subject property’s
       true value at $729,200, and its taxable value at $255,220 (BTA Decision and
       Order, 20140986) in spite of the Cuyahoga County Board of Revision
       (“BOR”) Decision relying upon competent evidence in reaching its decision.

Law and Analysis

       {¶11} TMMC argues that the BTA erred in concluding that the May 2012 auction

sale of the subject property was not an arm’s-length transaction. It asserts that the auction

sale price was “credible, competent and probative evidence” of the value of the subject
property and that the BTA should have “accepted” that evidence of the property’s value

“over the [Fiscal Officer’s] valuation of the property.” We disagree.

      {¶12} This court reviews a decision of the BTA to determine only whether it is

“reasonable and lawful.” R.C. 5717.04; Bd. of Edn. of the Warrensville Hts. City School

Dist. v. Cuyahoga Cty. Bd. of Revision, 145 Ohio St.3d 115, 2016-Ohio-78, 47 N.E.3d

144, ¶ 16; Gides v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No. 102649,

2015-Ohio-4385, ¶ 5. In conducting such a review, we defer to the factual findings of the

BTA so long as they are supported by “reliable and probative evidence in the record.” Bd.

of Edn. of the Warrensville Hts. City School Dist. at ¶ 16, citing Satullo v. Wilkins, 111

Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14; Weiler v. Cuyahoga Cty. Bd. of

Revision, 8th Dist. Cuyahoga No. 101822, 2015-Ohio-1383, ¶ 8.                 Any legal

determinations by the BTA are, however, subject to a de novo review. Olentangy Local

Schools Bd. of Edn. v. Del. Cty. Bd. of Revision, 141 Ohio St.3d 243, 2014-Ohio-4723, 23

N.E.3d 1086, ¶ 21, citing Crown Communication, Inc. v. Testa, 136 Ohio St.3d 209,

2013-Ohio-3126, 992 N.E.2d 1135, ¶ 16; see also Bd. of Edn. of the Warrensville Hts. City

School Dist. at ¶ 16.    “The party seeking the change in value bears the burden of

demonstrating a valuation different from the currently assessed value.” Weiler at ¶ 8,

citing Bd. of Edn. of the Columbus City School Dist. v. Franklin Cty. Bd. of Revision, 90

Ohio St.3d 564, 566, 740 N.E.2d 276 (1991).

      {¶13} Decisions of boards of revision are “‘not * * * accorded a presumption of

validity.’” Vandalia-Butler City School Bd. of Edn. v. Montgomery Cty. Bd. of Revision,
130 Ohio St.3d 291, 2011-Ohio-5078, 958 N.E.2d 131, ¶ 13, quoting Colonial Village,

Ltd. v. Washington Cty. Bd. of Revision, 114 Ohio St.3d 493, 2007-Ohio-4641, 873 N.E.2d

298, ¶ 23; see also Bd. of Edn. of the Vandalia-Butler City School Dist. v. Montgomery

Cty. Bd. of Revision, 106 Ohio St.3d 157, 2005-Ohio-4385, 833 N.E.2d 271, ¶ 10 (“‘[A]

determination of the true value of real property by a board of revision * * * is not

presumptively valid.’”), quoting Amsdell v. Cuyahoga Cty. Bd. of Revision, 69 Ohio St.3d

572, 574, 635 N.E.2d 11 (1994). Where, as here, the statutory transcript is the only

evidence before the BTA, the BTA must “make its own independent judgment based on its

weighing of the evidence contained in the transcript.” Columbus Bd. of Edn. v. Franklin

Cty. Bd. of Revision, 76 Ohio St.3d 13, 15, 665 N.E.2d 1098 (1996). Thus, the issue

before this court is whether the BTA acted reasonably and lawfully when it concluded that

there was insufficient evidence that the May 2012 auction sale was an arm’s-length

transaction and, on that basis, (1) reversed the BOR’s decision adopting the May 2012

auction sale price as the property’s value and (2) reinstated the Fiscal Officer’s original

valuation of the property.

       {¶14} The “best evidence of true value” of real property is generally considered to

be the actual sale price of the property in a recent arm’s-length transaction, i.e.,“the price

arrived at by a willing purchaser and willing seller.” Meyer v. Cuyahoga Cty. Bd. of

Revision, 58 Ohio St.2d 328, 333, 390 N.E.2d 796 (1979); Gides v. Cuyahoga Cty. Bd. of

Revision, 8th Dist. Cuyahoga No. 100830, 2014-Ohio-4086, ¶ 13. As applied to the tax
year at issue, former R.C. 5713.03,4 which sets forth how real property is to be valued for

tax purposes, stated, in relevant part:

        In determining the true value of any tract, lot, or parcel of real estate under
        this section, 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 for
        taxation purposes. * * *

Am.Sub.H.B. No. 260, 140 Ohio Laws, Part II, 2665, 2772.

        {¶15} R.C. 5713.04, however, expressly provides that “[t]he price for which * * *

real property would sell at auction or forced sale shall not be taken as the criterion of its

value.”     The Ohio Supreme Court has interpreted R.C. 5713.04 as “establish[ing] a

presumption that a sale price from an auction is not evidence of a property’s value.”

Olentangy, 141 Ohio St.3d 243, 2014-Ohio-4723, 23 N.E.3d 1086, at ¶ 40. However, the

presumption “may be rebutted by evidence showing that the [auction] sale occurred at

arm’s length between typically motivated parties.” Id. at ¶ 2, 40 (R.C. 5713.04 “requires

the taxing authorities to presume that an auction sale price is not a voluntary, arm’s-length

transaction” but “[t]hat presumption may be rebutted * * * by evidence that a particular


         See Sapina v. Cuyahoga Cty. Bd. of Revision, 136 Ohio St.3d 188, 2013-Ohio-3028, 992
        4


N.E.2d 1117, ¶ 20, fn. 1 (courts must “apply the substantive tax law that was in effect during the tax
year at issue”); see also Olentangy Local Schools Bd. of Edn. v. Del. Cty. Bd. of Revision,
2015-Ohio-2070, 34 N.E.3d 150, ¶ 28-39 (5th Dist.) (concluding that the H.B. 260 version of R.C.
5713.03 applied to property valuation for tax year 2012). R.C. 5713.03 was amended and now
provides, in relevant part: “In determining the true value of any tract, lot, or parcel of real estate under
this section, 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 [fiscal officer] may consider the sale price of such tract, lot, or parcel to be the true value for
taxation purposes.” (Emphasis added.)
sale was in fact voluntary and did occur at arm’s length.”); see also Schwartz v. Cuyahoga

Cty. Bd. of Revision, 143 Ohio St.3d 496, 2015-Ohio-3431, 39 N.E.3d 1223, ¶ 27.        R.C.

5713.04 applies regardless of whether the auction is a “voluntary auction” or an

“involuntary auction,” i.e., a “forced sale.” Olentangy at ¶ 27, 29-30. “[I]n spite of R.C.

5713.04’s proscription,” when all the elements of an arm’s-length transaction are present,

“‘the sale prices of parcels sold at auction are nevertheless the best evidence of [their]

value.’”   Id. at ¶ 39, quoting Concept Invest. Group L.L.C. v. Franklin Cty. Bd. of

Revision, BTA No. 2005-T-1267, 2006 Ohio Tax LEXIS 1482, *3 (Nov. 17, 2006).

       {¶16}   The party opposing the use of an auction sale price as evidence of a

property’s value “has a very light burden to establish that a transaction was on its face an

auction or a forced sale.” Olentangy at ¶ 43. “Once that threshold is crossed,” then the

proponent of the auction sale price as evidence of the property’s value “bears the burden to

prove that the sale was nevertheless an arm’s-length transaction between typically

motivated parties.” Id. In this case, it was undisputed that the subject property was sold

at an absolute auction. Thus, the Board of Education met its burden of establishing that

the May 2012 sale was an auction sale. Accordingly, a presumption arose that the May

2012 auction sale price was not evidence of the value of the subject property. The burden

then shifted to TMMC to prove that the May 2012 auction sale was an “arm’s-length

transaction between typically motivated parties.” Id.

       {¶17} An arm’s-length transaction is one that “‘encompasses bidding and

negotiation in the open market between a ready, willing and able buyer, and a ready,
willing and able seller, both being mentally competent, and neither acting under

coercion.’” NDHMD, Inc. v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga Nos.

101207 and 101300, 2015-Ohio-174, ¶ 24, quoting Walters v. Knox Cty. Bd. of Revision,

47 Ohio St.3d 23, 25, 546 N.E.2d 932 (1989). “A ‘typically motivated’ transaction is one

in which the buyer and seller are ‘pursuing their own financial interests.’” NDHMD at ¶

25, quoting Hilliard City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio

St.3d 1, 2014-Ohio-853, 9 N.E.3d 920, ¶ 31, citing AEI Net Lease Income & Growth Fund

v. Erie Cty. Bd. of Revision, 119 Ohio St.3d 563, 2008-Ohio-5203, 895 N.E.2d 830, ¶ 25.

      {¶18} In determining whether a transaction occurred at arm’s length, the Ohio

Supreme Court has identified three “relevant” factors: (1) “whether the sale was

‘voluntary; i.e., without compulsion or duress,’” (2) “whether the sale ‘[took] place in an

open market,’” and (3) “whether the buyer and seller ‘act[ed] in their own self interest.’”

Olentangy at ¶ 47, quoting Walters at 25.

      {¶19} TMMC argues that the auction sale of the subject property was an

arms-length transaction because (1) the property was generally advertised on the open

market by means of a large sign that had been prominently placed on the property that

was located near a busy intersection for more than six months; (2) the property was sold at

a public auction along with several other properties; (3) “a room full of people” bid on

the subject property; (4) there was no prior relationship between TMMC and the seller or

auctioneer; and (5) there were no back taxes owed on the property.
      {¶20} TMMC claims that the facts in this case are “nearly identical” to those in

Olentangy — in which the Ohio Supreme Court upheld the BTA’s finding that a public

auction sale was voluntary and occurred at arm’s length — and that this court should,

therefore, “uphold the BOR’s decision, just as the Court in Olentangy upheld the BTA’s

decision in favor of the taxpayer.” In Olentangy, the taxpayer filed a complaint with the

Delaware County BOR, seeking a reduction in the valuation of a parcel of real property

that the Delaware County auditor had valued at $826,100 for tax year 2009 to the

property’s December 2008 auction sale price, $414,750. Olentangy, 141 Ohio St.3d 243,

2014-Ohio-4723, 23 N.E.3d 1086, at ¶ 6, 8-9. A division or affiliate of Countrywide

Homes Loans (“Countrywide”) had acquired the subject property, which included a

single-family home, for $450,000 at a sheriff’s sale pursuant to foreclosure in October

2007. Id. at ¶ 5. Several months later, Countrywide listed the property on the multiple

listing service for a price of $479,000 and later reduced the price to $448,900. Id. When

the property did not sell, Countrywide arranged for an auction of the property. Id. at ¶

5-6. Abraham was the highest bidder and purchased the property at auction for $414,750.

Id. at ¶ 6. After closing, he transferred the property to TaDa, a real estate holding

company owned by Abraham and his wife. Id. at ¶ 7. At the hearing before the BOR,

Abraham, who had no prior relationship with Countrywide or the auctioneer, testified that

he had learned about the auction through advertisements on the internet and in newspapers

several weeks before the auction date. Id. at ¶ 11. He testified that 75 to 85 people

attended the auction in person and another 50 people participated online and that several
people bid on the property before he offered his last and highest bid of $414,750. Id. at ¶

12.   Countrywide, which had retained the right to reject the highest bid, accepted

Abraham’s bid and the closing occurred in December 2008. Id. at ¶ 12. After the

hearing TaDa submitted a copy of the property’s original MLS listing, the settlement

contract between Abraham and Countrywide that confirmed Countrywide’s authority to

reject Abraham’s bid and a real estate purchase addendum, which stated that Countrywide

had acquired the property through foreclosure. Id. at ¶ 14. The Board of Education

cross-examined Abraham but did not present its own witnesses at the hearing. Id. at ¶ 13.

       {¶21} The BOR issued a decision reducing the 2009 tax year valuation to $414,750.

 Id. at ¶ 15. The Board of Education appealed, and the BTA affirmed, concluding, based

on the record before it, that all elements of an arm’s-length transaction were present for the

2008 sale and that the sale price at auction was, therefore, the “best evidence of [the]

property’s value.” Id. at ¶ 19. The Ohio Supreme Court affirmed the decision of the

BTA, reasoning as follows:

       On this record, the BTA could reasonably have concluded that Countrywide
       acted under duress and was not a typically motivated seller. But the record
       also contains sufficient evidence to support the BTA’s contrary conclusion.
       As a result, we must defer to the BTA’s finding that this particular auction
       sale was voluntary and occurred at arm’s length. See Satullo, 111 Ohio St.3d
       399, 2006-Ohio-5856, 856 N.E.2d 954, at ¶ 14.

Olentangy at ¶ 52. Thus, in Olentangy, the court determined — based on the evidence

presented in that case — that the BTA could have reasonably concluded that the taxpayer

had proven that that the 2008 auction sale was an arm’s-length transaction, thereby

rebutting the presumption that the auction sale price was not evidence of a property’s
value, and or that the taxpayer had failed to rebut the presumption, i.e., that the auction

sale was not an arm’s-length transaction. Because the BTA determined that the sale was

an arm’s-length transaction, and its decision on this factual issue was entitled to deference

by the court, the court affirmed the BTA’s’ decision.

       {¶22}    Ciocca’s testimony demonstrates (1) that the auction sale in this case had

certain “open-market elements,” e.g., the auction was public, several people bid on the

subject property and TMMC had no ties to the seller or auctioneer, see Olentangy, 141

Ohio St.3d 243, 2014-Ohio-4723, 23 N.E.3d 1086, at ¶ 51, citing N. Royalton School Dist.

Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 129 Ohio St.3d 172, 2011-Ohio-3092, 950

N.E.2d 955, ¶ 30, (2) that the sale was voluntary as to TMMC and (3) that TMMC acted in

its own self interest in purchasing the property. However, in this case — unlike in

Olentangy — there is very limited information in the record regarding the seller, the

circumstances that led to the sale of the subject property or the seller’s motivation in

selling the subject property. Ciocca testified that he knew nothing about the seller. The

only evidence in the record regarding the seller or the circumstances under which the seller

sold the subject property is: (1) the identity of the seller; (2) Ciocca’s testimony that the

seller had owned the property since 1974 and that no back taxes were owed on the

property at the time of the sale; and (3) that the property was offered for sale at auction

“ABSOLUTE, REGARDLESS OF PRICE,” i.e., with no minimum bid. Although Ciocca

claimed the parties entered into a purchase agreement, the purchase agreement is not part

of the record. There is no information as to why the seller sold the property at an absolute
auction or whether the sale was “voluntary” or under “compulsion or duress” from the

seller’s perspective.

       {¶23} R.C. 5713.04 “‘codifies the basic proposition that a sale must be voluntary

from the standpoint of both seller and buyer in order to qualify as an arm’s-length

transaction.’” (Emphasis added.) Bd. of Edn. of the Warrensville Hts. City School Dist.,

145 Ohio St.3d 115, 2016-Ohio-78, 47 N.E.3d 144, at ¶ 18, quoting Cincinnati School

Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 127 Ohio St.3d 63, 2010-Ohio-4907,

936 N.E.2d 489, ¶ 19. Where, as here, a property is sold at “absolute auction,” such that

the seller is required to sell to the highest bidder, without a minimum bid, and where there

is no indication that the seller had a right to refuse to sell or accept a bid, it does not appear

that the seller is “typically motivated” such that it can be said that sale was an arm’s-length

transaction — at least in the absence of other evidence or information demonstrating the

seller’s motivation for such a sale. See, e.g., Camaglia v. Cuyahoga Cty. Bd. of Revision,

BTA No. 2015-90, 2015 Ohio Tax LEXIS 4092, *3 (Nov. 17, 2015). Accordingly, on

this record, we find that that the BTA acted reasonably and lawfully in concluding that

TMMC presented insufficient evidence to rebut the presumption that the May 2012

auction sale was not an arm’s-length transaction and that the auction sale price, therefore,

could not be properly considered as evidence of the property’s value under R.C. 5713.04.

       {¶24} TMMC argues that the “Bedford rule” controls the result in this case and that

under the Bedford rule, once TMMC “presented testimony [from Ciocca] on what TMMC

paid for the property and his opinion of the property’s value,” that value “should have been
accepted over the [Fiscal Officer’s] valuation of the property.” TMMC also argues that

because it “presented evidence on the value of the property” “negating the auditor’s

valuation” and the Board of Education did not offer any evidence of the property’s actual

value, the BTA was required to perform an “independent valuation” of the taxable value of

the property and could not simply adopt the Fiscal Officer’s original valuation of the

property. Once again, we disagree.

       {¶25} As the Ohio Supreme Court explained in Columbus City Schools Bd. of Edn.

v. Franklin Cty. Bd. of Revision, 144 Ohio St.3d 324, 2015-Ohio-3633, 43 N.E.3d 387,

       the Bedford rule * * * states that the BTA may not, at the request of a board
       of education, reinstate the auditor’s valuation when a BOR rejected that
       valuation based on competent evidence. Worthington City Schools Bd. of
       Edn. v. Franklin Cty. Bd. of Revision, 140 Ohio St.3d 248, 2014-Ohio-3620,
       17 N.E.3d 537, ¶ 38-41, citing Bedford Bd. of Edn. v. Cuyahoga Cty. Bd. of
       Revision, 115 Ohio St.3d 449, 2007-Ohio-5237, 875 N.E.2d 913. The BTA
       can override the Bedford rule and reinstate the auditor’s valuation when the
       BOR’s decision to reject the auditor’s valuation is completely unsupported in
       the record, see Worthington City Schools at ¶ 38, citing Columbus City
       School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 90 Ohio St.3d 564,
       567, 740 N.E.2d 276 (2001), or when the party challenging the BOR’s action
       presents evidence that the auditor’s valuation is more accurate than the
       BOR’s.

Columbus City Schools Bd. of Edn. at ¶ 44.

       {¶26} Thus, the “Bedford rule” applies only where a party presents competent

evidence of a valuation different than the value assessed by the Fiscal Officer that the

BOR relies upon in establishing a new property valuation. See, e.g., Worthington City

Schools Bd. of Edn. at ¶ 32, 35, 38 (“[I]f a board of revision makes a valuation change that

is completely unsupported in the record, the BTA may not affirm or adopt it. * * * [T]he
Bedford rule addresses circumstances in which the board of revision relies on specific and

plausible evidence to reach a valuation different from that originally found by the

auditor.”). TMMC presented no such evidence in this case.

       {¶27} As set forth above, with respect to the evidence TMMC presented regarding

the auction sale price, the BTA concluded, following its independent review of the

statutory transcript, that TMMC had failed to prove that the May 2012 auction sale was an

arm’s-length transaction by typically motivated parties and thus had failed to rebut the

presumption under R.C. 5713.04 that the May 2012 auction sale price was not evidence of

the property’s value. As such, the May 2012 auction sale was not competent evidence of

the property’s value under R.C. 5713.04 and could not be relied upon in determining the

total true value of the property.

       {¶28} Aside from the evidence of the May 2012 auction sale of the subject

property, the only other “evidence” TMMC submitted at the hearing were comparison lists

of tax values for several neighboring properties it claimed were similar to the subject

property. The BOR concluded at the hearing that this information was not competent,

probative evidence of the tax value of the subject property and, therefore, did not rely on it

in valuing the property. The BTA reached a similar conclusion. TMMC does not claim

that the BOR or BTA erred in reaching this conclusion.

       {¶29} Although TMMC asserts that Ciocca also “presented testimony” at the

hearing regarding “his opinion of the property’s value” and that the BOR relied on this

“competent evidence” in determining the value of the property, Ciocca did not, in fact,
offer any owner opinion testimony at the hearing. Rather, he testified only as to the

amount TMMC paid for the property at auction — $335,000 plus a 10% fee — and the

maximum it would have been willing to pay for the property at the auction — i.e. that

$375,000 “was going to be where we were going to stop.” Ciocca explained that these

numbers were not based on TMMC’s (or his) opinion of what the property was worth, but

rather, were based on the fact that “the three of us decided $125,000 apiece was

significant” and that they were planning on paying cash for the property and “didn’t want

to put ourselves at risk.” Ciocca admitted that, at the time of the auction, he “didn’t know

anything about the property” other than that it was vacant, that there were no back taxes

owed on the property and that it “looked like a beautiful piece of land.” See Worthington

City Schools Bd. of Edn., 140 Ohio St.3d 248, 2014-Ohio-3620, 17 N.E.3d 537, at ¶ 19

(discussing the “owner-opinion rule” and noting that it is based on the assumption that the

owner    “‘possess[es] sufficient acquaintanceship with [the property]’” to estimate its

value); quoting Smith v. Padgett, 32 Ohio St.3d 344, 347, 513 N.E.2d 737 (1987).

        {¶30} Here, there is no evidence in the record upon which the BTA could have

undertaken an independent assessment of the value of the subject property.          “In the

absence of probative evidence of a lower value,” the BTA is “justified in fixing the value

at the amount assessed by the county [fiscal officer].” Salem Med. Arts & Dev. Corp. v.

Columbiana Cty Bd. of Revision, 82 Ohio St.3d 193, 195, 694 N.E.2d 1324 (1998);

Vandalia-Butler City School Dist. Bd. of Edn., 106 Ohio St.3d 157, 2005-Ohio-4385, 833

N.E.2d 271, at ¶ 12.
      {¶31} Based on a thorough review of the record, we find that the BTA acted

reasonably and lawfully in reversing the decision of the BOR            and reinstating the

valuation of the subject property assessed by the Fiscal Officer.          Accordingly, we

overrule TMMC’s assignment of error.

      {¶32} Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Board of Tax

Appeals 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.



_____________________________________________
EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR
