Fox v. Board of Review

• Decision Date: 11 December 2002
• Docket Number: No. 01-1995.,01-1995.
• Citation: 656 N.W.2d 809
• Parties: R.S. FOX, L.L.L.P., Plaintiff-Appellant, v. BOARD OF REVIEW OF DES MOINES COUNTY, Defendant-Appellee.
• Court: Iowa Court of Appeals

656 N.W.2d 809

R.S. FOX, L.L.L.P., Plaintiff-Appellant, v. BOARD OF REVIEW OF DES MOINES COUNTY, Defendant-Appellee.

No. 01-1995.

Court of Appeals of Iowa.

December 11, 2002.

James Fisch and William Jahn, Jr. of Aspelmeier, Fisch, Power, Engberg & Helling, P.L.C., Burlington, for appellant.

Amy Snook, Assistant County Attorney, Burlington, for appellee.

Heard by SACKETT, C.J., and VAITHESWARAN and EISENHAUER, JJ.

SACKETT, C.J.

Appellant/cross-appellee, R.S. Fox, L.L.L.P. ("Fox"), appeals from the decision of the district court concerning the assessed valuation of certain buildings on its property. Fox claims (1) the court erred in admitting certain evidence and (2) the court's assessed value lacks a factual basis. Appellee/cross-appellant, the Board of Review of Des Moines County ("Board"), claims the court erred in not granting its motion for a directed finding. We affirm as modified on appeal and affirm on cross appeal.

Background facts and proceedings

Fox owns land in rural Des Moines County it operates as a private hunting preserve. It constructed a fourteen-bedroom hunting lodge totaling 12,000 square feet in 1999 at a cost of approximately $620,000. Fox built a metal utility building in 2000 at a cost of approximately $60,000. The property also contains a silo, a lean-to on the silo, and several other structures, which were on the land when Fox purchased it.

In 2000 Fox's property was assessed. The lodge was valued at $823,200, the utility building at $82,700, the silo at $4,900, the lean-to at $1,500, and a wooden deck at $15,000, for a total valuation of $992,300. Fox petitioned the Board for a reduction in the assessed valuation of these five structures. The valuation of the other structures is not at issue. The Board reduced the assessment of the utility building to $72,700, the silo to $1,500, the lean-to to $700, eliminated the deck because all agreed it no longer existed, but upheld the valuation of the lodge, for a total of $975,000. Fox appealed the Board's decision by filing a petition in equity in district court, alleging the correct valuation of the structures in question is $333,300.

In January 2001 the court filed its memorandum of the trial setting conference. In pertinent part, it set the trial for May 23, 2001, ordered disclosure of the Board's expert witnesses by April 16, and ordered discovery closed on April 23. On May 8 Fox filed a motion to preclude witnesses for the Board from testifying, based on the Board's failure to disclose expert witnesses and its failure to provide sufficient answers to interrogatories. The Board filed a motion to continue the trial and to extend discovery deadlines and a request for leave to designate expert witnesses. After a combined hearing on the parties' motions, the court found good cause for the Board's delay in discovery, allowed the Board to designate expert witnesses, ordered the Board to answer the interrogatories fully and accurately, and continued only that portion of the trial involving the Board's presentation of its evidence to give Fox time to depose the Board's experts and to receive its answers to interrogatories. Fox presented its case as scheduled on May 23. The Board presented its case on August 30. Fox objected to the Board's offer of an exhibit containing its valuation records as hearsay and lacking foundation. The court stated it would rule on objections in its ruling. On November 13, the court issued its decision reducing the valuation of the lodge to $700,000 and affirming the Board's valuation of the other structures. Fox appeals and the Board cross appeals.

Scope of review

Our review of equitable proceedings is de novo. Iowa R.App. P. 6.4; see Iowa Code § 441.39 (2001) (stating appeal to district court is in equity). We review the evidentiary decisions of the district court for an abuse of discretion. In re Estate of Rutter, 633 N.W.2d 740, 745 (Iowa 2001).

Claims on appeal

Fox. First, Fox claims the court erred in admitting and considering the Board's Exhibit A, which was the property record of the County Assessor for Fox's property but which contained assessment valuations produced by Vanguard Appraisal Company. At trial Fox objected to the exhibit as hearsay and lacking foundation. The Board responded it was admissible under the public records exception to hearsay. The court did not rule on the objection, but cited data from the exhibit in its findings of fact.

Second, Fox contends the court's ruling lacks a factual basis in the record. It argues the court improperly discounted the unrefuted valuations presented by its experts and based its findings on assumptions and conclusions without evidentiary support. It argues the Board's witnesses testified they were not qualified to make valuations of the lodge and did not make their own appraisal of the lodge.

Board. Iowa Code section 441.21(3) places the burden of proof on Fox to demonstrate the assessed values were excessive. The Board contends the only evidence Fox presented of the assessed values was a comparison chart prepared by counsel for Fox. The Board argues Fox did not meet his burden of proof without any direct evidence of the valuations, so the court erred in denying the Board's motion for directed finding.

Discussion

Admissibility of Exhibit A. The Board offered the County Assessor's property record for Fox's property as Exhibit A. Michael Anderson, the County Assessor, stated that the original valuation figures in the record were produced by Vanguard Appraisal Company, not his office. The figures were modified after the Board adjusted them on appeal. Anderson, in his deposition, testified what information is contained in property records maintained by his office. No one from Vanguard was called as a witness or deposed. None of the Board's witnesses provided any information about how Vanguard performs appraisals, what guidelines or manual Vanguard uses, why the lodge was classified as a "motel common facility," or the basis for the grade multiplier or depreciation figures. The last notation of any action by Vanguard in the exhibit is dated before the construction of the two buildings at issue. The court received the exhibit subject to Fox's hearsay and lack-of-foundation objections. It is apparent the court used the information in the exhibit in making its ruling.

The fighting issue for the hearsay objection is whether the property record qualifies as a public record or report under Iowa Rule of Evidence 5.803(8), one of the exceptions to the hearsay rule. Rule 5.803(8) provides:

(8) Public records and reports.

(A) To the extent not otherwise provided in rule 5.803(8)(B), records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to a duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.

(B) The following are not within this exception to the hearsay rule:

(i) Investigative reports by police and other law enforcement personnel.

(ii) Investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party.

(iii) Factual findings offered by the state or political subdivision in criminal cases.

(iv) Factual findings resulting from special investigation of a particular complaint, case, or incident.

(v) Any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.

Rule 5.803(8)(B), however, shall not supersede specific statutory provisions regarding the admissibility of particular public records and reports.

Iowa R. Evid. 5.803(8).

Fox focuses on the language in the first part of paragraph (A) and argues the exhibit is not "records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities" because the data were produced by Vanguard Appraisal, not the Assessor, thus the exhibit does not reflect the "regularly conducted and regularly recorded activities" of the assessor. Fox also argues the exceptions to the exception in paragraphs (B)(ii) and (B)(iv) appear to apply. The usual application of those paragraphs is to reports and investigations made by law enforcement agencies or at their behest. See, e.g., State v. Curry, 436 N.W.2d 371 (Iowa Ct.App.1988) (police field interview); State v. Freiburger, 443 N.W.2d 85 (Iowa Ct.App.1989) (fire marshal's list of incendiary fires); State v. McCurry, 544 N.W.2d 444 (Iowa 1996) (DNA reports).

The Board points to the language at the end of paragraph (A), "or matters observed pursuant to a duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law." It argues section 441.17 imposes a duty on the Assessor to "cause to be assessed" all non-exempt property in the county. Iowa Code § 441.17(2). It is unclear from the text whether the observation or investigation must be made by the public office or agency in order to qualify for the exception. Section 441.17 also requires the Assessor to "[m]ake up all assessor's books and records," which can be understood as a duty to report. Iowa Code § 441.17(6).

In Hunt v. State, 252 N.W.2d 715 (Iowa 1977), the court admitted the Consumer Price Index, which is prepared by the United States Department of Labor's Bureau of Labor Statistics. Id. at 722. In Henkel v. R and S Bottling Co., 323 N.W.2d 185 (Iowa 1982), the court refused to admit a report of the Bureau of Epidemiology of the United States Consumer Product Safety Commission entitled "Hazard Analysis of Carbonated Soft Drink Bottles." Id. at 193. In its analysis, the court compared this report with the Consumer Price Index admitted in Hunt, concluding the hazard analysis lacked the ...