Murray v. Wasco Cnty. Assessor, TC-MD 150207N

• Decision Date: 06 November 2015
• Docket Number: TC-MD 150207N
• Parties: RICHARD J. MURRAY, Plaintiff, v. WASCO COUNTY ASSESSOR, Defendant.
• Court: Oregon Tax Court

RICHARD J. MURRAY, Plaintiff, v. WASCO COUNTY ASSESSOR, Defendant.

TC-MD 150207N

OREGON TAX COURT MAGISTRATE DIVISION Property Tax

November 6, 2015

FINAL DECISION

This Final Decision incorporates without change the court's Decision, entered October 20, 2015. The court did not receive a statement of costs and disbursements within 14 days after its Decision was entered. See TCR-MD 16 C(1).

I. INTRODUCTION

Plaintiff appeals the real market value of property identified as Account 2039 (subject property) for the 2014-15 tax year. A trial was held via videoconference on July 13, 2015. Plaintiff and Georgiana A. M. Murray (Murray), Oregon-licensed real estate broker, appeared on behalf of Plaintiff. Murray testified on behalf of Plaintiff. Darlene K. Lufkin (Lufkin), Chief Appraiser, appeared and testified on behalf of Defendant.

Plaintiff's Exhibits 1 through 4 were received without objection. Plaintiff offered an additional exhibit that was not exchanged prior to trial. Plaintiff stated that the exhibit was in rebuttal of Defendant's appraisal report. Defendant objected to the admission of Plaintiff's rebuttal exhibit because it was not exchanged prior to trial. Tax Court Rule-Magistrate Division (TCR-MD) 12 C(1)(c) states: "A party submitting rebuttal evidence in a telephone trial must file all rebuttal exhibits no later than 5 p.m. prior to the trial date." Trial was held via videoconference, which is similar to a telephone trial in that the parties are not physically present in the courtroom. As a result, the court excluded Plaintiff's rebuttal exhibit under TCR-MD 12 C(1)(c) because Plaintiff's rebuttal exhibits were required to be submitted no later than 5:00 p.m. on Friday, July 10, 2015.

Defendant's Exhibit A was admitted over Plaintiff's objection to the size of the text in that exhibit. Plaintiff raised his objection to the text size for the first time at trial and did not previously notify Defendant of his objection. Plaintiff confirmed that he had obtained assistance from Murray to review Defendant's Exhibit A prior to trial.

At the conclusion of his case-in-chief, Plaintiff orally moved for "summary judgment" under Oregon Rule of Civil Procedure (ORCP) 60 (regarding motions for a directed verdict). The court construed Plaintiff's motion as one under Tax Court Rule (TCR) 60 (regarding motions for dismissal at trial) and denied Plaintiff's motion. This court has previously explained the distinction between ORCP 60 and TCR 60, as well as the applicable standard under TCR 60:

"[T]he ORCP 60 [is] a rule designed to govern when a court may remove an issue or matter from consideration by a jury—i.e., a directed verdict. This court does not have a jury and, therefore, TCR 60 has a slightly different purpose: TCR 60 serves to allow the moving party to request the court to rule from the bench on the record at that time before the court. When the court evaluates a motion made pursuant to TCR 60, however, it will do so in a manner consistent with that taken by the state's other courts that are subject to ORCP 60. In order to prevail on a motion for directed verdict pursuant to TCR 60, the moving party must demonstrate that the record contains no evidence to support the nonmoving party's claim or claims. The court will not weigh the evidence; rather, it will consider the entire record and afford the nonmoving party all reasonable inferences drawn therefrom, in the light most favorable to that party."

Freitag v. Dept. of Rev., 18 OTR 368, 373-74 (2005) (citation omitted).

TCR 60 thus allows the court to dismiss a nonmoving party's claim if the record is wholly devoid of evidence in support of that claim. The only claim in this case is Plaintiff's appeal of the real market value of the subject property. Plaintiff carries the burden of proving that claim, not Defendant. See ORS 305.427. Therefore, Plaintiff's appeal is the only claim thatcould be dismissed by the court. The court understood Plaintiff's motion as a request for judgment in Plaintiff's favor—made before Defendant had a chance to present its evidence—and not a request to dismiss Plaintiff's appeal. TCR 60 does not provide for such a request, and the court is not aware of any authority that would support Plaintiff's request. Accordingly, the court denied Plaintiff's motion.

II. STATEMENT OF FACTS

A. Subject Property

The subject property is a two-bedroom, one-bathroom residence built in 1941, located on a 0.23 acre lot in The Dalles, Oregon. (See Ptf's Ex 1 at 1-2, 10; Def's Ex A at 7, 19.) Plaintiff described the residence as a 972-square-foot building, "of which 132 [square feet] is an unheated breezeway." (Ptf's Ex 1 at 1-2.) Defendant described the residence as having a total living area of 840 square feet. (Def's Ex A at 2.) The subject property has a garage and a partial, unfinished basement. (Ptf's Ex 1at 2.) Murray testified that the subject property's bathroom can only be accessed by passing through a bedroom. (See also Ptf's Ex 2 at 29.) The subject property has a paved driveway, part of which is subject to an easement for ingress and egress that benefits the two lots to the north of the subject property. (Ptf's Ex 1 at 2; Def's Ex A at 5.)

The subject property's tax roll real market value for the 2014-15 tax year was $154,430. (Compl at 2.) Its maximum assessed value was $124,141. (Id.) Plaintiff appealed to the Wasco County Board of Property Tax Appeals (BOPTA), and BOPTA sustained the values on the tax roll. (Id.) Plaintiff timely appealed, requesting that this court find a real market value of $92,790. (Id.at 1) Defendant recommended that the court sustain the real market value on the tax roll. (Def's Ex A at 1.)

B. Plaintiff's Evidence

Murray testified for Plaintiff and presented Plaintiff's exhibits. Murray testified that she has been "in real estate since 1986" and that she has been a principal broker in Oregon since 1989. She testified that she has been preparing broker price opinions of real property since 2000. (Cf. Ptf's Ex 1 at 2.) Plaintiff bought the subject property in 2002, and Murray testified that she had subsequently used the subject property as her office. (See id. at 1.) Murray testified that, after Plaintiff's purchase, she and Plaintiff updated the subject property with new windows and doors. Murray explained that she and Plaintiff "had to apply for a neighborhood center overlay" so that the property's use as an office would comply with local zoning regulations.

Plaintiff provided a broker's price opinion, prepared by Murray, that compared the subject property with other similar properties. (Ptf's Ex 1.) Murray testified that her usual practice when preparing broker's price opinions was to only use properties within 80 to 120 percent of the subject property's square footage. Murray used four "listing comparables" and six "sold comparables," and compared the tax roll improvement value for each property to the tax roll improvement value for the subject property. (Ptf's Ex 1 at 5-8). None of the comparables were adjusted for differences with the subject property. (See id.) Based on those comparisons, Murray concluded that "[t]he value of the improvements on the subject property [is] too high and should be reduced to * * * [$]66,000." (Id. at 9.) In addition, Murray provided seven "land value comparisons," comparing the tax roll land value for each of seven comparable properties with the tax roll land value of the subject property. (Id. at 8.) Murray wrote that, because of the easement and incorrect boundary lines, the useable portion of the subject property was actually 0.14 acre. (Id. at 2.) Murray concluded that the subject property's land real market value shouldequal that of other 0.14-acre lots because of "the actual dimensions of the property[.]"¹ (Id. at 9.) Murray testified that she concluded the subject property's real market value was $92,790 by adding $66,000, the amount she concluded for the subject property's improvements, to $26,790, the tax roll land value for 0.14-acre properties that she found to be similar to the subject property. (See Ptf's Ex 1 at 8-9.)

Plaintiff provided a sale agreement between Plaintiff and a prospective buyer of the subject property, dated March 26, 2015. (Ptf's Ex 4 at 3.) The sale price of the property was $110,000, but Plaintiff agreed to pay $4,000 of the buyer's closing costs. (Id. at 2.) Murray testified that she put the subject property on the market with an asking price of $115,000 in October of 2014. Murray testified that the closing date had been extended five times at the request of the buyer's lender, but the sale could close "today or tomorrow."

The buyer and her lender commissioned an independent property inspection and independent appraisal of the subject property. (See Ptf's Ex 2 (appraisal report); Ptf's Ex 3 (property inspection report).) Murray testified that after the inspection, which occurred on April 1, 2015, Plaintiff agreed to make some minor repairs to the subject property. (See Ptf's Ex 3 at 1.) Murray testified that the appraisal report was prepared for the buyer's lender. The appraisal report concluded that the subject property's real market value was $110,000 as of April 18, 2015. (Ptf's Ex 2 at 1.) Murray testified that she agreed with the appraiser's conclusion. The appraiser who prepared the report was not available to testify.

Lufkin gave rebuttal testimony regarding her specific concerns with the report and her general concern that the appraiser was unavailable to answer those questions. Lufkin testified that the appraisal report indicated the market values in the subject area were increasing and there was a supply shortage. (See Ptf's Ex 2 at 6.) She testified that the report indicated prices and inventories of comparable properties, however, were "[s]table." (Id. at 13.) The appraisal report stated an area for the residence—1,128 square feet—that differed from the area used by both Plaintiff and Defendant. (Id. at 6.) Lufkin testified that the appraiser...