upholding BTA’s decision to reject evidence presented by appraiser because of contingency-fee arrangement
How later courts described this case
- upholding BTA’s decision to reject evidence presented by appraiser because of contingency-fee arrangement
Written by the judges who cited it.
The opinion
Holmes, J.,
dissenting. If the determination of the Board of Tax Appeals (“board”) were being reviewed here merely upon the weight of the evidence, I would readily concur with the majority opinion. However, what this court should consider upon review here is the faulty basis upon which the board made its determination. The board, in its decision, indicated that since the appellant had retained its expert on a contingency fee basis, the expert’s testimony and appraisal were so biased that they should be totally ignored. The language of the board in this regard is as follows:
“We have carefully reviewed the fee arrangement between PTR and appellant. We must conclude, as urged by the Board of Revision, that Mr. Kennedy’s employer, PTR, has obtained an interest in this appeal by virtue of the contract. As such, Mr. Kennedy cannot be considered to be an independent fee appraiser. His testimony and opinion of value are not reliable and credible under the instant circumstances. Accordingly, we hereby find that Mr. Kennedy’s testimony and appraisal shall not be considered in determining the fair market and taxable values of the subject property.”
Consequently, the only evidence reviewed by the board was that of the expert for the board of revision. This is shown by the board’s language in reference to this evidence:
*159 “The only other evidence properly before this Board is the testimony and appraisal of Mr. Carrelli and the statutory transcript provided by the Board of Revision. Mr. Carrelli mostly relied upon the market appraisal approach in arriving at his determination of value. He reviewed his analysis and the comparable properties relied upon during the hearing before this Board. We find that his appraisal is acceptable and uncontroverted.”
It is true that appellant’s expert appraiser was an employee of an appraisal corporation which was retained upon a contingency fee basis. There is no law in Ohio, either statutory or case law from this court, which would prohibit consideration of evidence from experts who are employed upon a contingency basis. The fact that the employer company operates upon a contingency fee basis does not render the evidence from this appraisal expert any less acceptable.
The weight and credibility to be given each witness here is within the province of the board. However, all the evidence here should have been considered, and the determination by the board should have been made upon the totality of such evidence. In that the determination of the board was made only after disregarding the testimony and appraisal of the appellant’s expert, such decision is improper. Therefore, the decision of the board should be reversed and this matter remanded to the board for a new review in accord herewith.
Wright, J., concurs in the foregoing dissenting opinion.