Garfield Mall Assoc. v. Cuyahoga Cty. Bd. of Revision

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Garfield Mall Associates, Appellant, v. Cuyahoga County Board

of Revision et al.; Garfield Heights Board of Education,

Appellee.

[Cite as Garfield Mall Assoc. v. Cuyahoga Cty. Bd. of Revision

(1993), Ohio St.3d .]

Taxation -- Real property valuation -- Adoption of board of

education appraiser's valuation by Board of Tax Appeals

neither unreasonable nor unlawful, when -- R.C.

5715.19(G), applied.

(No. 92-951 -- Submitted December 1, 1992 -- Decided May

19, 1993.)

Appeal from the Board of Tax Appeals, Nos. 89-H-1141 and

89-H-1142.

Appellant, Garfield Mall Associates, an Ohio general

partnership, was the owner of Garfield Mall in Garfield

Heights, Ohio. On August 1, 1987, Jeffrey I. Friedman,

Trustee, acquired a seventy-five percent interest in Garfield

Mall Associates. The name in which the subject property was

owned remained the same; however, appellant's property

manager's real estate department was not advised by its legal

department of the acquisition.

For tax year 1988 the Cuyahoga County Auditor valued

Garfield Mall, at a true value of $4,770,000. On appeal the

Cuyahoga County Board of Revision increased the valuation to

$6,000,000. Appellant, contending that the true value was

$3,530,000, appealed to the Board of Tax Appeals ("BTA"). The

BTA, based upon evidence presented to it, determined that the

true value of the property was $6,500,000.

Garfield Mall covers 24.602 acres and contains a

department store, a theatre, a supermarket, and a number of

smaller retail spaces. Appellant's expert witness, Richard G.

Racek, did not appraise the property but examined documents

relative to the transfer of the seventy-five percent

partnership interest and determined that the true value of the

subject property was $4,700,000. Sam D. Canitia, expert

witness for the appellee, Garfield Heights Board of Education,

appraised the property and, utilizing a correlated market and

income approach to value, determined the true value of the

subject property to be $6,500,000. The BTA accepted Canitia's

appraised value as the true value of the real estate and

ordered the Cuyahoga County Auditor to modify its valuation

accordingly.

The cause is now before this court upon an appeal as of

right.

Fred Siegal Co., L.P.A., Fred Siegal, Todd W. Sleggs and

Stephen R. Gill, for appellant.

Arter & Hadden and Donald G. Paynter, for appellee,

Garfield Heights Board of Education.

Per Curiam. The determinative issue herein is the true

value of Garfield Mall. Appellant essentially questions the

decision of the BTA to adopt the valuation given by appellee's

appraiser. Appellant's expert witness did not appraise the

subject real estate in arriving at true value, but merely

reviewed documents dealing with Friedman's acquisition of the

partnership interest in Garfield Mall Associates. On the

other hand, appellee's appraiser inspected the property and

utilized the market and the income approaches in determining

true value. Based upon the testimony and evidence presented to

the BTA, we affirm its decision and find that the true value of

the subject property is $6,500,000.

As an ancillary issue herein, appellee, at the BTA

hearing, objected to the testimony of Martin A. Fishman, legal

counsel for appellant's property manager, regarding the

acquisition of the partnership interest by Friedman, based upon

R.C. 5715.19(G). That statute provides:

"A complainant shall provide to the board of revision all

information or evidence within his knowledge or possession that

affects the real property that is the subject of his

complaint. A complainant who fails to provide such information

or evidence is precluded from introducing it on appeal to the

board of tax appeals or the court of common pleas, except that

the board of tax appeals or the court may admit and consider

the evidence if the complainant shows good cause for his

failure to provide the information or evidence to the board of

revision."

Appellant contends that the holding in Coventry Towers,

Inc. v. Strongsville (1985), 18 Ohio St.3d 120, 18 OBR 151, 480

N.E.2d 412, precluded the introduction of information or

evidence within a witness' knowledge or possession only when

the information or evidence was intentionally withheld from

presentation before the board of revision. Appellant claims

the subject information was not intentionally withheld, but

rather was not introduced at the board of revision hearing

because of a miscommunication between the real estate

department and the legal department of appellant's property

manager. Appellee counters that a failure of internal

communication is not good cause for failing to present

information or evidence at a board of revision hearing.

The BTA refused to admit the testimony of appellant's

witness and found "[k]nowledge of the August 1, 1987 sale" was

in the appellant's possession at the board of revision

hearing. The BTA found further that "lack of internal

communication * * * [was not] 'good cause'" for failure to

provide information or evidence to the board of revision. We

agree.

The decision of the BTA is neither unreasonable nor

unlawful and it is affirmed.

Decision affirmed.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.

Sweeney and Pfeifer, JJ., concur.