The opinion
[This opinion has been published in Ohio Official Reports at 72 Ohio St.3d 31.]
TREBMAL LANDERHAVEN, APPELLANT AND CROSS-APPELLEE, v. CUYAHOGA
COUNTY BOARD OF REVISION ET AL., APPELLEES; MAYFIELD HEIGHTS BOARD
OF EDUCATION, APPELLEE AND CROSS-APPELLANT.
[Cite as Trebmal Landerhaven v. Cuyahoga Cty. Bd. of Revision,
1995-Ohio-150.]
Taxation—Real property evaluation—Board of Tax Appeals decision upheld when
supported by credible evidence.
(No. 93-2593—Submitted October 14, 1994—Decided April 12, 1995.)
APPEAL from the Board of Tax Appeals, Nos. 91-M-269 and 91-M-270.
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{¶ 1} Trebmal Landerhaven ("Trebmal"), a limited partnership, owns real
property in the Landerhaven Corporate Center Office Park in Mayfield Heights,
Ohio. One parcel, consisting of 6.250 acres, is improved with three one-story
masonry office buildings, known as Landerhaven Office Plaza, containing
approximately 73,542 square feet of net rental space. The adjoining 4.593-acre
parcel, also owned by Trebmal, is unimproved. The property was purchased in late
1986, and construction of the buildings began in 1987. As of January 1, 1988,
eighty-five to ninety percent of the basic shells of the buildings were completed,
and by January 1, 1989, the basic shells were "substantially completed" and more
than one-third of the rental space was occupied.
{¶ 2} For tax years 1988 and 1989 the Cuyahoga County Auditor
established the true value of the subject property as:
Tax year 1988 Tax year 1989
Land $1,887,000 Land $1,887,000
Buildings $2,406,310 Buildings $3,961,910
Total $4,293,310 Total $5,848,910
SUPREME COURT OF OHIO
{¶ 3} The Cuyahoga County Board of Revision scheduled the complaints
as to valuation filed by Trebmal and the counter-complaints filed by the Mayfield
Heights Board of Education ("school board") for hearing on August 9, 1990.
Trebmal requested and was granted a continuance in order to gather sufficient
evidence to fully prepare its case. A second hearing, scheduled for November 30,
1990, was also postponed for the same reason and the hearing was rescheduled for
January 30, 1991. A third continuance request was denied by the board of revision.
{¶ 4} The board of revision determined that the values established by the
auditor were correct and Trebmal then appealed to the Board of Tax Appeals
("BTA"), where the cases were consolidated for hearing and expert appraisal
testimony was presented by Trebmal and by the school board.
{¶ 5} Upon appeal, the BTA determined that the true value of the subject
property was:
Tax year 1988 Tax year 1989
Land $2,170,000 Land $2,170,000
Building $2,504,320 Building $3,263,235
Total $4,674,320 Total $5,433,235
{¶ 6} The cause is now before this court upon an appeal as of right.
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Fred Siegel Co., L.P.A., Fred Siegel, Stephen R. Gill, Robert K. Danzinger,
Annrita S. Johnson and Daniel S. Siegel, for appellant and cross-appellee.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
Timothy Kollin, Assistant Prosecuting Attorney, for appellees Cuyahoga County
Board of Revision and Cuyahoga County Auditor.
Kelley, McCann & Livingstone, Fred J. Livingstone and Robert A. Brindza,
for appellee and cross-appellant.
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Per Curiam.
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January Term, 1995
{¶ 7} The decision of the BTA is affirmed.
{¶ 8} Trebmal's appeal challenges the land valuations for 1988 and 1989
and the building valuation for 1989. Trebmal also contends that the land and
building values for 1989 constitute an unconstitutional taking of property without
due process of law; that the BTA abused its discretion in violation of the uniform
applicability provision of the Ohio Constitution, Section 26, Article II; and that the
BTA decision constitutes a denial of equal protection of the laws, as guaranteed by
the Ohio and federal Constitutions.
{¶ 9} Trebmal's constitutional issues are without merit. The valuation found
by the BTA was not "grossly excessive," as asserted by Trebmal, but was supported
by credible evidence. The valuation did not constitute an unlawful taking of
property in violation of the Fifth Amendment to the Constitution of the United
States, or a denial of due process under the Fourteenth Amendment to the
Constitution of the United States, or a violation of the Ohio Constitution.
{¶ 10} In R.R.Z. Assoc. v. Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio
St.3d 198, 202, 527 N.E.2d 874, 878, we rejected appellant's (R.R.Z. Associates')
claim that the subject property was not valued uniformly under Section 2, Article
XII of the Ohio Constitution, stating: "[S]ince we find that there is sufficient
probative evidence to support the BTA's decision, we disagree with appellant's
premise and hold that the property is valued uniformly."
{¶ 11} In Rick Case Motors, Inc. v. Tracy (1994), 71 Ohio St.3d 380, 382-
383, 643 N.E.2d 1137, 1138, we stated:
"Finally, Case claims that this application of the statute denies it equal
protection. It then recites examples of how this problem could occur; however,
Case presented no evidence of how other taxpayers were actually treated in contrast
with it. Consequently, the record is not factually sufficient to establish its claim.
Lyons v. Limbach (1988), 40 Ohio St.3d 92, 94, 532 N.E.2d 106, 109." See, also,
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Koblenz v. Cuyahoga Cty. Bd. of Revision (1966), 5 Ohio St.2d 214, 34 O.O.2d
424, 215 N.E.2d 384.
{¶ 12} Trebmal can find no support in Allegheny Pittsburgh Coal Co. v.
Cty. Commr. of Webster Cty. (1989), 488 U.S. 336, 109 Sup. Ct. 633, 102 L.Ed.2d
697. That case is factually distinguishable because, as the school board observes,
in Allegheny, the Supreme Court was presented with the question whether certain
tax assessments constituted an equal protection violation when the assessments
were up to thirty-five times more than the assessments for comparable neighboring
property over a ten-year period. See 488 U.S. at 342, 344, 109 S. Ct. at 637, 638,
102 L.Ed.2d at 696, 697.
{¶ 13} Trebmal presented no evidence to establish that its property was
assessed at a value that was "greatly in excess of the prevailing average ratio of
assessed value to the fair market value * * * [of] property in Cuyahoga County."
Koblenz, supra, at 215, 34 O.O.2d at 424, 215 N.E.2d at 386.
{¶ 14} In its cross-appeal, the school board contends that the BTA erred in
not excluding the report and testimony of Trebmal's expert witness, and that the
BTA's determination of value as to land and buildings was unreasonable and
unlawful because it was based upon evidence which should have been excluded.
The school board also contends the BTA's decision should be reversed and
remanded because it failed to impose monetary sanctions against Trebmal.
{¶ 15} Taking the cross-appeal first, we agree with the BTA as to the
request for sanctions. Apparently, Trebmal had intended to present the testimony
of its officers to the BTA and had so advised the school board. The hearing was
continued three times at Trebmal's request because its witness was unavailable.
However, on February 15, 1993, Trebmal changed its tactics and decided to present
the appraisal evidence of Wesley Baker, and advised the school board of this
change. Baker's appraisal report was not available until the morning of the hearing,
which was held on February 24, 1993. At the hearing, the school board moved for
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January Term, 1995
sanctions against Trebmal, seeking reimbursement of its costs incurred in opposing
appellant's original strategy and in challenging Baker's appraisal.
{¶ 16} Ohio Adm. Code 5717-1-10(A) states: "Discovery may be permitted
by deposition upon oral examination or written questions; written interrogatories;
* * * and requests for admissions. The 'Ohio Rules of Civil Procedure' shall be
used as a guideline for discovery purposes * * *." The school board contends that
the late notice of Trebmal's intention to present an expert witness constituted
"surprise."
{¶ 17} Although Civ. R. 37(B) provides for sanctions when a party fails to
comply with discovery rules, the BTA found that there were other sanctions
available to it, under Ohio Adm. Code 5717-1-13, which include prohibiting the
introduction of expert testimony into evidence and ordering the payment of
reasonable expenses caused by failure to obey an order. The BTA found, and we
agree, that such sanctions were not appropriate because the school board was given
a choice to cross-examine the appraiser at the hearing or to continue the hearing
until a later time. In addition, the school board was prepared to, and did, in fact,
offer the testimony of its own expert appraiser. Moreover, counsel for the school
board was familiar with the underlying information and was able to cross-examine
Trebmal's appraisal witness effectively.
{¶ 18} As to the true value of the subject property, we hold that the decision
of the BTA was reasonable and lawful under paragraph four of the syllabus of
Cardinal Fed. S. & L. Assn. v. Cuyahoga Cty. Bd. of Revision (1975), 44 Ohio St.2d
13, 336 N.E.2d 433:
"The fair market value of property for tax purposes is a question of fact, the
determination of which is primarily within the province of the taxing authorities,
and this court will not disturb a decision of the Board of Tax Appeals with respect
to such valuation unless it affirmatively appears from the record that such decision
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is unreasonable or unlawful. (Bd. of Revision v. Fodor, 15 Ohio St.2d 52 [44 O.O.
2d 30, 238 N.E.2d 25], approved and followed.)"
{¶ 19} We are satisfied from our review of the record that the BTA's
findings are based upon sufficient probative evidence, including expert appraisal
testimony. See First Union Real Estate Equity & Mtge. Investments v. Cuyahoga
Cty. Bd. Of Revision (1990), 53 Ohio St.3d 236, 560 N.E.2d 177.
{¶ 20} Both Wesley Baker and Richard Van Curen, the school board's
appraisal witness, agreed that the highest and best use of the property was for office
development and they utilized the same method of appraisal, the cost method,
which the BTA found to be the most appropriate here. The BTA also agreed with
Van Curen's estimate of land value of $200,000 per acre as of January 1, 1988, and
that that value should apply as well to 1989. Despite Baker's conclusion that the
reasonable value of the land was $150,000 per acre, the record discloses a forty-
acre sale in the area in July 1988 for $180,000 per acre, and a six-acre sale of land
with freeway exposure in July 1988 for $237,500 per acre. In addition, the BTA
found Van Curen's estimate of $220,000 per acre as of January 1, 1989 was not
inconsistent with its finding because it was appropriate to carry forward the 1988
values to 1989.
{¶ 21} Finally, Trebmal argues that the BTA ignored the zoning
requirement that all tracts be at least six acres in size, and that this led to an
excessive valuation for the land by the BTA. This issue is not dispositive because
Wesley testified that the 4.593-acre tract could have been made to comply with
zoning requirements, either by acquiring adjoining land (albeit with difficulty) to
enlarge the tract to six full acres, or by selling the tract. In any case, there was
sufficient evidence to establish that the BTA determination of $200,000 per acre
was not unreasonable or unlawful, and thus its decision is affirmed.
Decision affirmed.
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January Term, 1995
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
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