The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Musto v. Lorain Cty. Bd. of Revision, Slip Opinion No. 2016-Ohio-8058.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-8058
MUSTO, APPELLANT, v. LORAIN COUNTY BOARD OF REVISION ET AL.,
APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Musto v. Lorain Cty. Bd. of Revision, Slip Opinion No.
2016-Ohio-8058.]
Taxation—Real-property-valuation—Board of Tax Appeals did not abuse
discretion in denying property owner’s motion for continuance or motion
to disqualify counsel for county and Board of Revision, and BTA acted
reasonably and lawfully in retaining auditor’s valuation in absence of clear
evidence negating it—BTA’s decision affirmed.
(No. 2014-1771—Submitted August 30, 2016—Decided December 13, 2016.)
APPEAL from the Board of Tax Appeals, No. 2013-4191.
_______________________
Per Curiam.
{¶ 1} In this real-property-valuation case, appellant, Cynthia M. Musto,
challenges a decision of the Board of Tax Appeals (“BTA”) that affirmed the
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decision of the Lorain County Board of Revision (“BOR”) to retain the county
auditor’s valuation of her property for tax year 2012.
{¶ 2} Musto argues that the BTA’s decision was unlawful and unreasonable
in three respects. First, she contends that the BTA should have granted a
continuance when her only scheduled witness, a certified appraiser who conducted
an appraisal of the property in 2014, did not show up for the BTA hearing. Second,
she challenges the BTA’s valuation decision, arguing that the evidence that she
produced made it unreasonable for the BTA to retain the auditor’s valuation and
that the BTA had a legal duty to independently determine a value based on the
evidence that she presented. Finally, Musto argues that the BTA should have
disqualified counsel for the BOR and the auditor because he was also a member of
the BOR hearing panel.
{¶ 3} For the reasons explained below, we reject Musto’s claims and affirm
the BTA’s decision.
FACTS
{¶ 4} Musto owns and occupies the subject property, which is located at
16449 Boone Road in Lorain County. It spans 10.01 acres and has been improved
with a 4,094 square-foot single-family home, a pole barn, and an indoor horse
arena.
{¶ 5} In tax year 2012, a sexennial reappraisal year in Lorain County, the
county auditor valued the property at $547,260. Musto filed a complaint with the
BOR requesting a reduction in value to $405,000.
BOR proceedings
{¶ 6} A two-member BOR hearing panel, consisting of the county treasurer
and Jack Kilroy, a representative of the county auditor, heard Musto’s complaint.
Musto’s husband testified about the subject property and nearby properties that had
recently been sold, and he responded to questions from the BOR panel. He opined
that the property’s value was $405,000 as of the tax-lien date. And Musto’s
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attorney submitted a document providing information about the property and
identifying two recent “[n]eighborhood [s]ales” and two current “[n]eighborhood
[l]istings.”
{¶ 7} Finally, Musto introduced an appraisal report that had been prepared
for financing purposes in 2009. James A. Malloy, a certified Ohio-licensed
appraiser, evaluated the property for Third Federal Bank. He relied on the sales-
comparison approach, identifying three comparable sales. After making
adjustments, Malloy opined a value of $405,000 as of January 30, 2009. The report
was certified by the appraiser, but Malloy did not testify before the BOR panel.
{¶ 8} On August 7, 2013, the BOR issued a decision retaining the auditor’s
valuation for tax year 2012. The BOR concluded that Musto had presented
insufficient evidence to support a reduction in value.
BTA proceedings
{¶ 9} Musto appealed to the BTA, which scheduled a hearing for 9:00 a.m.
on March 4, 2014.
Preliminary matters
{¶ 10} Musto planned to present the testimony of Elizabeth Caldwell at the
BTA hearing. Caldwell is an Ohio-licensed appraiser of residential real estate, who
had appraised the property on February 13, 2014. At the beginning of the March 4
hearing, Musto’s counsel informed the BTA examiner that Caldwell was “running
behind” and moved to “continue th[e] hearing to a later date and time.” He also
asked the hearing examiner to keep the record open for ten days so that he could
introduce any future evidence of good cause for Caldwell’s absence. Alternatively,
Musto’s counsel sought permission for Caldwell to participate by telephone.
{¶ 11} Counsel for the auditor and the BOR opposed all three requests, and
the hearing examiner denied them, emphasizing that the parties had had almost six
months’ advance notice of the hearing date. The examiner also explained that the
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BTA permits telephonic hearings only for matters on its small-claims track, which
did not apply to Musto’s case.
{¶ 12} Musto next objected to “Mr. Kilroy’s attendance in representation of
the Board of Revision[,] County Auditor[,] and the County Appellees in general at
this hearing as he was a neutral member of the BOR tribunal in the decision below.”
Musto’s counsel stated that he was not asking the hearing officer to disqualify Kilroy
but was only “noting an objection [for] the record.”
{¶ 13} In response, Kilroy argued that his representation was consistent with
his role on the BOR panel. Under R.C. 5715.02, three individuals serve on a county
board of revision: the county treasurer, the county auditor, and a member of the board
of county commissioners. In Musto’s case, the county auditor exercised his statutory
authority to appoint a qualified employee—Kilroy—“to serve in [his] place and stead
on” the board of revision. Id.
{¶ 14} Kilroy then explained that although he is employed by the auditor,
he is also an assistant prosecutor for Lorain County, for the limited purpose of
representing the county auditor and the BOR. The county prosecutor is the legal
adviser of all county officers and boards, including the BOR, and therefore has a
statutory duty to “prosecute and defend all suits and actions” to which the BOR is
a party. R.C. 309.09(A) (noting exceptions established in R.C. 305.14); see also
State ex rel. Trumbull Cty. Bd. of Elections v. Trumbull Cty. Bd. of Commrs., 11th
Dist. Trumbull No. 2009 TR 85, 2010-Ohio-2281, ¶ 19.
{¶ 15} The BTA overruled Musto’s objection, and Kilroy represented the
auditor and the BOR at the hearing. Eight days after the hearing, Musto filed a
written motion to disqualify Kilroy. She requested a new merits hearing and,
alternatively, asked the BTA to remand the matter to the BOR. The BTA denied the
motion on September 24, 2014.
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January Term, 2016
Evidence of value
{¶ 16} Musto did not present any witnesses at the BTA hearing. She asked
the BTA to consider the statutory transcript from the BOR proceedings, which
included Malloy’s appraisal report.
{¶ 17} Musto also introduced Caldwell’s certified appraisal report without
accompanying testimony. The report indicated that Caldwell had inspected the
property, identified its highest and best use, and analyzed market conditions. In the
report, she identified four sales of comparable properties (two of which had barns
and an indoor riding arena), made adjustments, and arrived at a valuation of
$450,000 as of the tax-lien date.
{¶ 18} The auditor and the BOR did not introduce any evidence, but their
counsel indicated that he would have liked to question Malloy and Caldwell about
their methodologies. Musto’s counsel said that Caldwell could be there in less than
two hours and would be available to answer any questions then. But the auditor
and the BOR did not want to prolong the hearing, and the hearing examiner noted
that she had already denied Musto’s requests regarding Caldwell at the outset of
the hearing.
The BTA’s decision
{¶ 19} On September 24, 2014, the BTA issued a decision affirming the
BOR’s valuation. The BTA explained that although Musto had submitted
Caldwell’s appraisal report, it “was not attested to by the author.” And it found that
Malloy’s appraisal was of limited value because it “was done for financial
purposes” and “contains an effective date prior to the tax lien date at issue.” Thus,
the BTA declined to rely on either appraisal report and concluded that Musto had
presented insufficient evidence to support the requested adjustment. The BTA
affirmed the BOR’s decision adopting the auditor’s valuation.
ANALYSIS
{¶ 20} On appeal, Musto asserts three propositions of law:
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Proposition of Law No. 1: The decisions of the Board of Tax
Appeals to deny the motions to continue the hearing were
unreasonable, unlawful, and/or an abuse of discretion, since the
BTA failed to properly apply and/or consider this Court’s legal
standard in State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078
(1981).
Proposition of Law No. 2: The Board of Tax Appeals’
decision is unreasonable, unlawful, and/or an abuse of discretion,
since the BTA failed to exclude and/or disqualify counsel for the
Appellees.
Proposition of Law No. 3: The Board of Tax Appeals’
decision is unreasonable, unlawful, and/or an abuse of discretion,
since the BTA reverted to the Auditor’s value despite competent
evidence that negated the validity and reliability of the Auditor’s
value.
Motion for continuance
{¶ 21} Musto first argues that the BTA erred by denying her motion to
continue the BTA hearing.
{¶ 22} The decision to grant or deny a continuance lies within the BTA’s
sound discretion. Coats v. Limbach, 47 Ohio St.3d 114, 116, 548 N.E.2d 917 (1989);
Ohio Adm.Code 5717-1-16(B). This court will affirm a BTA decision granting or
denying a continuance absent a showing that “the BTA’s attitude was unreasonable,
arbitrary, or unconscionable.” EOP-BP Tower, L.L.C. v. Cuyahoga Cty. Bd. of
Revision, 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 14.
{¶ 23} According to Musto, the BTA applied the wrong standard in
considering her motion for a continuance. In support, she cites Unger, 67 Ohio St.2d
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65, 423 N.E.2d 1078, which identified various factors relevant to deciding whether
to grant a continuance:
In evaluating a motion for a continuance, a court should note,
inter alia: the length of the delay requested; whether other
continuances have been requested and received; the inconvenience to
litigants, witnesses, opposing counsel and the court; whether the
requested delay is for legitimate reasons or whether it is dilatory,
purposeful, or contrived; whether the defendant contributed to the
circumstance which gives rise to the request for a continuance; and
other relevant factors, depending on the unique facts of each case.
Id. at 67-68. But Unger does not suggest that information will always be available
about each of these factors or require a court to assign particular weight to any one
factor. Furthermore, Unger was a criminal appeal, not an administrative one; it is not
clear that the same factors are equally important in both contexts.
{¶ 24} In the specific context of BTA appeals, we have considered a number
of factors when reviewing the decision to grant or deny a continuance. Relevant
considerations may include, inter alia, the requester’s compliance with the BTA’s
procedural rules, the requester’s diligence and good faith, and opposition from other
parties. See LTC Properties, Inc. v. Licking Cty. Bd. of Revision, 133 Ohio St.3d 111,
2012-Ohio-3930, 976 N.E.2d 852, ¶ 14-17. And when the basis for a continuance
request is a witness’s absence, this court has evaluated the reason for the absence
(and whether it is supported by the record), the importance of the witness’s testimony
to the requester’s case, and whether the witness would likely be able to attend if the
hearing were continued. Id. at ¶ 17; Coats at 116-117; Strongsville Bd. of Edn. v.
Cuyahoga Cty. Bd. of Revision, 53 Ohio St.3d 254, 256, 559 N.E.2d 1351 (1990).
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{¶ 25} Here, the parties received nearly six months’ notice of the BTA
hearing date, time, and location. As explained above, Musto intended to present
expert testimony from Elizabeth Caldwell, but Caldwell had yet to arrive when the
hearing began—for reasons then unknown to Musto’s counsel. Musto’s counsel
sought a continuance (to an unspecified time) or, alternatively, asked the BTA to let
Caldwell participate via telephone. The auditor and the BOR opposed the requests,
and the hearing examiner denied the motion.
{¶ 26} There is no question that Caldwell’s testimony was important to
Musto’s appeal. Caldwell had performed a new appraisal of the property, and she
would have been Musto’s only witness at the BTA hearing. Musto introduced
Caldwell’s appraisal report, but Caldwell was not available to explain her
methodology or to answer questions. This absence was significant: opposing
counsel specifically noted his desire to cross-examine Caldwell about her selection
of comparable sales. And, ultimately, the BTA rejected Musto’s requested
adjustment based on insufficient evidence.
{¶ 27} But even so, other factors support the BTA’s decision to deny the
requested continuance. As an initial matter, no procedural rule expressly permits a
last-minute request for a continuance. See Ohio Adm.Code 5717-1-16 (formerly
Ohio Adm.Code 5717-1-15). And, more important, the record does not show that
Musto established good cause at the time of her request. At that point, Musto’s
counsel had no explanation for the delay:
THE EXAMINER: Mr. Nowak, do you know why the
appraiser is running late?
MR. NOWAK: At this point in time, I do not know for sure
why she’s running late.
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Nor did counsel indicate at that time that Caldwell was en route to the hearing.
Compare King v. Kelly, 4th Dist. Lawrence No. 02CA42, 2003-Ohio-4412, ¶ 9-14
(brief continuance should have been granted when the court knew that the appellants
were en route and the record showed that their absence was not due to neglect or
disregard).
{¶ 28} Further, Musto’s counsel did not make any statements on the record
about his diligence in ensuring the witness’s presence at the hearing, his efforts to
locate her that morning, or when she would be available. It was not until the parties
were making concluding statements that he asked the BTA “to wait for an hour and
45 minutes” so that Caldwell could “answer any cross-examination that the County
Appellees’ attorney might have, or the Board for that matter.” But even then Musto’s
counsel did not offer a reason for Caldwell’s delay.1 And when opposing counsel
challenged the estimated arrival time as speculative, Musto’s counsel did not
respond.
{¶ 29} Under these circumstances, we defer to the judgment of the hearing
examiner, who was in the best position to evaluate the facts and circumstances of
the continuance request. Thus, Musto can neither establish an abuse of discretion
nor prevail on her related claims that the denial of her motion for a continuance
violated due process and prompted an unconstitutional taking.
{¶ 30} For these reasons, we reject Musto’s first proposition of law.
The BTA’s valuation determination
{¶ 31} Musto also challenges the BTA’s decision to retain the auditor’s
valuation of her property, arguing that she introduced “competent evidence that
negated the validity and reliability of the Auditor’s value.” Thus, she claims that the
BTA had a “statutory duty to determine value from the record.”
1
In her brief to this court, Musto asserts that Caldwell “mistakenly went to the wrong location on
the day of the hearing.”
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Standard of review and burden of proof
{¶ 32} “In reviewing a decision of the BTA, we do not sit as ‘a super BTA
or a trier of fact de novo.’ ” RNG Properties, Ltd. v. Summit Cty. Bd. of Revision,
140 Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.3d 906, ¶ 18, quoting EOP-BP
Tower, 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, at ¶ 17. We “will not
hesitate to reverse a BTA decision that is based on an incorrect legal conclusion.”
Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 Ohio St.3d 231,
232, 754 N.E.2d 789 (2001). However, the BTA’s factual findings are entitled to
deference as long as they are supported by “ ‘reliable and probative’ ” evidence in
the record. Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d
954, ¶ 14, quoting Am. Natl. Can Co. v. Tracy, 72 Ohio St.3d 150, 152, 648 N.E.2d
483 (1995).
{¶ 33} We “will not disturb” a valuation determination by the BTA “unless
it affirmatively appears from the record that such decision is unreasonable or
unlawful.” Cuyahoga Cty. Bd. of Revision v. Fodor, 15 Ohio St.2d 52, 239 N.E.2d
25 (1968), syllabus. Perhaps most significant in this context is our recognition of the
BTA’s “wide discretion in determining the weight to be given to the evidence and
the credibility of the witnesses that come before it.” EOP-BP Tower at ¶ 9. Indeed,
we will not reverse such determinations by the BTA “[a]bsent a showing of an abuse
of discretion,” meaning that “the BTA’s attitude was unreasonable, arbitrary or
unconscionable.” Id. at ¶ 14.
{¶ 34} “When cases are appealed from a board of revision to the BTA, the
burden of proof is on the appellant, whether it be a taxpayer or a board of education,
to prove its right to an increase or decrease from the value determined by the board
of revision.” Columbus City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision,
90 Ohio St.3d 564, 566, 740 N.E.2d 276 (2001). In order to prevail, the appellant
“must present competent and probative evidence * * *; it is not entitled to a reduction
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or an increase in valuation merely because no evidence is presented against its claim.”
Id.
{¶ 35} In the usual course, the BTA is “justified in retaining the county’s
valuation of [a] property when an appellant ‘fails to sustain its burden of proof at
the BTA.’ ” Copley-Fairlawn City School Dist. Bd. of Edn. v. Summit Cty. Bd. of
Revision, __ Ohio St.3d __, 2016-Ohio-1485, __ N.E.3d __, ¶ 17, quoting Colonial
Village, Ltd. v. Washington Cty. Bd. of Revision, 123 Ohio St.3d 268, 2009-Ohio-
4975, 915 N.E.2d 1196, ¶ 23. However, we have recognized a “ ‘narrow exception’
” to this rule, id., quoting Colonial Village at ¶ 24, which applies in “a category of
cases in which ‘the evidence presented to the board of revision or the BTA
contradicts the auditor’s determination in whole or in part,’ ” id., quoting Dayton-
Montgomery Cty. Port Auth. v. Montgomery Cty. Bd. of Revision, 113 Ohio St.3d
281, 2007-Ohio-1948, 865 N.E.2d 22, ¶ 27. When “confronted with clear [ ]
evidence negating the auditor’s valuation,” it is unreasonable and unlawful for the
BTA to “adopt[ ] the auditor’s valuation rather than determin[e] the taxable value
of the property” based on the record as developed by the parties. Dublin City
Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 193, 2013-
Ohio-4543, 11 N.E.3d 206, ¶ 26.
The BTA reasonably and lawfully retained the auditor’s valuation because Musto
did not present clear evidence negating it
{¶ 36} Citing Dublin City Schools at ¶ 26, Musto asserts that the BTA could
not “revert[ ] to” the auditor’s valuation, because she presented “competent” evidence
“affirmatively negat[ing]” it. But Musto’s evidence did not negate the auditor’s
valuation of the property, for the reasons explained below.
Caldwell’s appraisal report
{¶ 37} At the BTA, Musto introduced a new appraisal report prepared by
Elizabeth Caldwell, a certified Ohio appraiser. Caldwell identified four comparable
sales, made the necessary adjustments, and opined a value of $450,000 as of the tax-
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lien date. The report was certified, but Caldwell did not testify at the hearing. The
BTA declined to rely on the report because Caldwell was “unavailable to authenticate
[it], provide professional credentials, discuss methodologies utilized, or be cross-
examined/questioned by the opposing party’s attorney or [the BTA’s] attorney
examiner.” According to the BTA, Caldwell’s opinion of value was of little help
since the basis for her opinion was not explained.
{¶ 38} Musto argues that Caldwell’s report was relevant evidence and that
the BTA should have considered its contents as evidence of value. In support, she
cites Plain Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 130 Ohio St.3d
230, 2011-Ohio-3362, 957 N.E.2d 268, ¶ 29. In Plain Local Schools, a school board
argued that an appraisal report was not reliable and probative evidence of value,
because the appraiser who had prepared it did not testify. Id. at ¶ 18. But the school
board had not raised a hearsay objection below, id. at ¶ 19, and this court held that
the BTA did not plainly err by considering the report as evidence. Instead, we
explained that the “record contain[ed] indicia of reliability of the content of the
appraisal report,” including testimony about the preparation and purpose of the
appraisal. Id. at ¶ 21.
{¶ 39} Plain Local Schools is not dispositive here. That decision held only
that no plain error occurs when the BTA chooses to consider an appraisal report in
the absence of the testimony of the appraiser who prepared it. But Plain Local
Schools does not hold that the BTA must consider such evidence. Indeed, such a
holding would contradict the court’s consistent recognition that the BTA has “wide
discretion to determine the weight given to evidence,” including appraisal evidence,
R.R.Z. Assocs. v. Cuyahoga Cty. Bd. of Revision, 38 Ohio St.3d 198, 201, 527 N.E.2d
874 (1988); accord Plain Local Schools at ¶ 17. “The BTA may accept all, part, or
none of the testimony presented to it by an expert.” Freshwater v. Belmont Cty. Bd.
of Revision, 80 Ohio St.3d 26, 30, 684 N.E.2d 304 (1997).
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Malloy’s appraisal report
{¶ 40} Musto also relied on an appraisal report prepared by James A. Malloy,
a certified Ohio appraiser. Malloy had performed an appraisal of the subject property
for financing purposes in 2009. In his report, Malloy identified three comparable
sales, made adjustments, and opined a value of $405,000 as of January 30, 2009. The
appraisal was certified, but Malloy did not testify before the BOR or the BTA. The
BTA held that it could not rely on Malloy’s report both because he did not testify and
because his opinion of value preceded the tax-lien date.
{¶ 41} The BTA reasonably declined to rely on Malloy’s appraisal report as
evidence of value. Malloy had opined a value for the property almost three years
prior to the tax-lien date. But “[t]he essence of an assessment is that it fixes the value
based upon facts as they exist at a certain point in time.” Freshwater at 30; see also
Olmsted Falls Village Assn. v. Cuyahoga Cty. Bd. of Revision, 75 Ohio St.3d 552,
555, 664 N.E.2d 922 (1996). And Musto did not introduce testimony alongside the
appraisal to explain its application to the tax-lien date. Compare Plain Local Schools,
130 Ohio St.3d 230, 2011-Ohio-3362, 957 N.E.2d 268, at ¶ 27; AP Hotels of Illinois,
Inc. v. Franklin Cty. Bd. of Revision, 118 Ohio St.3d 343, 2008-Ohio-2565, 889
N.E.2d 115, ¶ 16-17.
{¶ 42} Moreover, “[a]ppraisals for financing purposes are not necessarily a
complete and thorough evaluation of the property.” Metzler v. Pickaway Cty. Bd.
of Revision, BTA No. 2004-R-481, 2005 WL 2911447, *3 (Oct. 21, 2005). “[T]he
purpose, the focus, and the considerations” of these types of appraisals “can be very
different,” id., “which may frame/impact the scope of the appraiser’s work
product,” Akron City School Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision, BTA
No. 2010-Y-3389, 2013 WL 4508915, *3 (Aug. 8, 2013). Thus, unless the
appraiser offers “explanatory testimony” and there is an opportunity for cross-
examination, it is very difficult to assess the value of a financing appraisal for ad
valorem taxation purposes. Metzler at *3. As a result, the BTA has been
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“particularly wary of financing appraisals where the appraiser has not been present,
either at the BOR or at this board, to testify to the facts and methodology underlying
the appraisal report.” Patterson v. Montgomery Cty. Bd. of Revision, BTA No.
2007-N-827, 2008 WL 2072372, *3 (May 6, 2008). In the absence of direct
testimony about the preparation and actual use of Malloy’s appraisal, the BTA was
reasonably wary of relying on a financing appraisal. Compare Copley-Fairlawn City
School Dist., __ Ohio St.3d __, 2016-Ohio-1485, __ N.E.3d __, at ¶ 23-25 (owner
testified about the origin and use of a financing appraisal alongside the appraisal,
showing the reliance that both he and the bank placed upon it).
Owner’s opinion of value
{¶ 43} Musto’s husband, Michael Musto, testified at the BOR hearing. He
described the subject property as unique and opined that its value had decreased since
2009. Mr. Musto compared the property to two nearby comparable sales (for
$585,000 and $975,000) and two nearby active listings (for $650,000 and $599,900).
He opined that the four nearby properties were not actually comparable, because they
had more extensive improvements and were not horse facilities. Mr. Musto
explained that Malloy’s appraisal was conducted in 2009 when the property was
refinanced; Mr. Musto noted that he and his wife still owe approximately $195,000
on the property and that the outbuildings need frequent repair.
{¶ 44} Musto’s counsel also submitted at the BOR hearing a memorandum
from him to the BOR dated July 2, 2013. The memo described the subject property
and its condition, identified two “[n]eighborhood [s]ales” and two “[n]eighborhood
[l]istings”—the four comparable properties discussed at the BOR hearing—and
stated Musto’s opinion that the property’s value was $405,000 on the tax-lien date.
Several documents were attached to the memo, including a location diagram and a
map, photographs, information from the county auditor’s website, and a news article
about declining home values in the Cleveland area. The memo also referred to an
affidavit from Musto, which does not appear to be in the record.
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January Term, 2016
Critique of the auditor’s methodology
{¶ 45} Finally, in an effort to “affirmatively negat[e] the validity of the
county’s valuation of the property,” Colonial Village, 123 Ohio St.3d 268, 2009-
Ohio-4975, 915 N.E.2d 1196, at ¶ 24, Musto argues that the county auditor used the
wrong method to value the property.
{¶ 46} The property-record card indicates that the auditor relied exclusively
on the cost approach to valuation. “The cost method of valuing improvements seeks
to determine what a potential buyer would expect to pay in constructing a
replacement for the existing building.” Dayton-Montgomery Port Auth., 113 Ohio
St.3d 281, 2007-Ohio-1948, 865 N.E.2d 22, at ¶ 12. When using this method, the
auditor first estimates the replacement cost new, then makes deductions “for
depreciation including physical deterioration” and “functional and economic
obsolescence” to ultimately “arrive at the value of the improvements in their present
condition.” Ohio Adm.Code 5703-25-12(A).
{¶ 47} We have recognized that the cost approach is important when
“ ‘estimating the market value of new or relatively new construction.’ ” Colonial
Village at ¶ 21, quoting Appraisal Institute, The Appraisal of Real Estate 354 (12th
Ed.2001). Here, the subject property had been constructed more than 12 years prior
to the tax-lien date, which undoubtedly made it more difficult to calculate
depreciation than it would have been if the improvements had occurred in the last
year or two. But the age of these improvements does not render the cost approach
per se inapplicable. Compare Upchurch v. Cuyahoga Cty. Bd. of Revision, BTA No.
2014-630, 2015 WL 1406154, *2 (Mar. 19, 2015) (“We * * * question the utilization
of the cost approach on a structure that [ ] is over 100 years old. Even with an
effective age of 45 years, the calculation of depreciation becomes more difficult and
less accurate”). And here, Musto does not identify any point of dispute with the
figures yielded by the auditor’s cost approach.
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Conclusion as to value
{¶ 48} Having considered Musto’s evidence as well as her critique of the
auditor’s valuation method, we cannot conclude that this is a case in which the
taxpayer’s evidence clearly negated the auditor’s valuation of the property. Here, the
BTA reasonably acted within its broad discretion by assigning minimal weight to
Musto’s evidence. See EOP-BP Tower, 106 Ohio St.3d 1, 2005-Ohio-3096, 829
N.E.2d 686, at ¶ 9. Thus, because Musto failed to negate the auditor’s valuation, the
BTA acted reasonably and lawfully when it retained that valuation of the property.
{¶ 49} Musto also suggests that the BTA acted unreasonably and unlawfully
because the auditor and the BOR “presented no affirmative market evidence in
support of [the] Auditor’s valuation.” This argument invokes what we have referred
to as “the Bedford rule,” which bars the BTA’s reliance on an auditor’s valuation
under a limited set of circumstances. See Copley-Fairlawn City School Dist., __
Ohio St.3d __, 2016-Ohio-1485, __ N.E.3d __, at ¶ 19, citing Bedford Bd. of Edn.
v. Cuyahoga Cty. Bd. of Revision, 115 Ohio St.3d 449, 2007-Ohio-5237, 875 N.E.2d
913. Namely, if a board of revision reduces the auditor’s property valuation based
on the owner’s evidence of value, then the board of education and the BTA cannot
rely on the auditor’s valuation as a default valuation. Id. Instead, the board of
education must shoulder its burden by going forward with new evidence at the BTA.
Id. But here, the Bedford rule does not apply, because the BOR retained the auditor’s
valuation; it follows that the BTA could adopt the auditor’s valuation as a default
even without hearing additional evidence in support.
{¶ 50} For these reasons, we reject proposition of law No. 3.
Motion to disqualify
{¶ 51} Musto also claims that the BTA erred by denying her motion to
disqualify Jack Kilroy as counsel for the county auditor and the BOR. In the context
of asking the court to reverse the BTA’s decision and remand the cause to the BTA,
Musto requests that Kilroy “be disqualified as counsel for the Appellees.”
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{¶ 52} We review a decision not to disqualify counsel for an abuse of
discretion. See Sarbey v. Natl. City Bank, Akron, 66 Ohio App.3d 18, 23, 583 N.E.2d
392 (9th Dist.1990); Cleveland v. Cleveland Elec. Illum. Co., 440 F.Supp. 193, 196
(N.D.Ohio 1976). Here, Musto claims that an abuse of discretion occurred because
Kilroy’s representation allegedly violated:
Prof.Cond.R. 1.12(a), which prohibits a lawyer from “represent[ing] anyone in
connection with a matter in which the lawyer participated personally and
substantially as a judge or other adjudicative officer or law clerk to such a person
or as an arbitrator, mediator, or other third-party neutral, unless all parties to the
proceeding give informed consent, confirmed in writing”;
R.C. 102.03, a provision of Ohio ethics law known as the “revolving door”
statute, see, e.g., State v. Nipps, 66 Ohio App.2d 17, 419 N.E.2d 1128 (10th
Dist.1979), paragraph one of the syllabus, which prohibits a current public
official or employee from “represent[ing] a client * * * on any matter in which
the public official or employee personally participated as a public official or
employee through decision, approval, disapproval, recommendation, the
rendering of advice, investigation, or other substantial exercise of
administrative discretion,” R.C. 102.03(A)(1); and
the Due Process Clauses and Takings Clauses of the United States and Ohio
Constitutions.
{¶ 53} We are troubled by Kilroy’s dual role in this case: he was both a
member of the BOR hearing panel and is counsel for the auditor and the BOR. But
even so, Musto is not entitled to the relief that she seeks in this context.
{¶ 54} As the preamble to the Rules of Professional Conduct explains,
“violation of a rule does not necessarily warrant any other nondisciplinary remedy,
such as disqualification of a lawyer in pending litigation.” Prof.Cond.R., Preamble
[20]. Here, Musto has failed to establish that she was injured or aggrieved by
Kilroy’s dual role. To the contrary, it appears that Kilroy’s interests were identical
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both as the county auditor’s representative on the BOR panel and as the assistant
prosecutor representing the county auditor and the BOR panel (after Musto named
them as appellees at the BTA). And there is no evidence that Kilroy in any way
benefited from his dual role or that it was detrimental to Musto or anyone else.
Under these circumstances, we do not find that the BTA abused its discretion by
denying Musto’s disqualification motion.
{¶ 55} Likewise, even if Musto could prove a violation of the revolving-door
statute, relief is not available on direct appeal from a BTA decision. “ ‘[R]eversal or
vacation of an administrative decision is not the remedy for a violation of R.C.
102.03; the remedy is to notify the Ethics Commission, who conducts an
investigation. If the investigation reveals that there is probable cause to believe that
a violation occurred, the Ethics Commission refers the matter to the County
Prosecutor.’ ” Mather v. Springfield Twp., 6th Dist. Lucas No. L-94-196, 1995 WL
302307, *3 (May 19, 1995), quoting lower court’s decision and citing R.C. 102.06;
see also State ex rel. Powers v. Curtis, 12th Dist. Clinton No. CA2002-10-039,
2003-Ohio-6104, ¶ 25-26.
{¶ 56} Last, Musto claims that “Kilroy’s unlawful representation of the
Appellees demonstrates that the Appellant was denied her constitutional rights to due
process as she failed to receive a fair and impartial hearing before the BOR and the
BTA, which also resulted in an unlawful taking of her property.” But on the record
before us, there is no basis for concluding that Musto was denied a fair and impartial
hearing or that she suffered an unlawful taking.
{¶ 57} We therefore reject Musto’s second proposition of law.
CONCLUSION
{¶ 58} For these reasons, we affirm the BTA’s decision.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, and FRENCH, JJ., concur.
KENNEDY, J., concurs in judgment only.
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O’NEILL, J., dissents, with an opinion joined by PFEIFER, J.
_________________
O’NEILL, J., dissenting.
{¶ 59} I must dissent. The Board of Tax Appeals (“BTA”) acted totally
unreasonably in denying the request to continue the hearing so that the appraiser
who submitted the report introduced by appellant, Cynthia M. Musto, could testify
either in person or by another method. This is an informal hearing, and in this day
of advanced cell-phone technology, the government agency had a duty to
accommodate the witness in a reasonable fashion. I would reverse the decision of
the BTA on appellant’s first proposition of law.
PFEIFER, J., concurs in the foregoing opinion.
_________________
Karen H. Bauernschmidt Co., L.P.A., Karen H. Bauernschmidt, Charles J.
Bauernschmidt, Glen E. Littlejohn, and Stephen M. Nowak, for appellant.
Dennis P. Will, Lorain County Prosecuting Attorney, and John P. Kilroy
and Gerald A. Innes, Assistant Prosecuting Attorneys, for appellees Lorain County
Board of Revision and Lorain County Auditor.
_________________
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