Musto v. Lorain Cty. Bd. of Revision, 2014–1771.
| Decision Date | 13 December 2016 |
| Docket Number | No. 2014–1771.,2014–1771. |
| Citation | 2016 Ohio 8058,71 N.E.3d 279,148 Ohio St.3d 456 |
| Parties | MUSTO, Appellant, v. LORAIN COUNTY BOARD OF REVISION et al., Appellees. |
| Court | Ohio Supreme Court |
Karen H. Bauernschmidt Co., L.P.A., Karen H. Bauernschmidt, Charles J. Bauernschmidt, Cleveland, Glen E. Littlejohn, Columbus, 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.
{¶ 1} In this real-property-valuation case, appellant, Cynthia M. Musto, challenges a decision of the Board of Tax Appeals ("BTA") that affirmed the 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.
{¶ 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 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 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) (); 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, 2010 WL 2026075, ¶ 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.
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.
{¶ 20} On appeal, Musto asserts three propositions of law:
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 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...
To continue reading
Request your trial
-
Hilliard City Sch. Bd. of Educ. v. Franklin Cnty. Bd. of Revision
...EOP–BP Tower at ¶ 9. Absent an abuse of discretion, the BTA's evidentiary determinations will not be reversed. Musto v. Lorain Cty. Bd. of Revision , 148 Ohio St.3d 456, 2016-Ohio-8058, 71 N.E.3d 279, ¶ 33.{¶ 26} In arguing that it had offered sufficient evidence of changed market condition......
-
Buckeye Terminals, L.L.C. v. Franklin Cnty. Bd. of Revision
...BTA to adopt the auditor's valuation rather than to determine the property's value based on the record evidence. Musto v. Lorain Cty. Bd. of Revision , 148 Ohio St.3d 456, 2016-Ohio-8058, 71 N.E.3d 279, ¶ 35, citing Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 139 Ohio......
-
Jakobovitch v. Cuyahoga Cnty. Bd. of Revision
...her July 2010 financing appraisal. We confronted a similar argument under analogous circumstances in Musto v. Lorain Cty. Bd. of Revision , 148 Ohio St.3d 456, 2016-Ohio-8058, 71 N.E.3d 279, ¶ 40–42. There, the owner furnished an appraisal that opined a value as of almost three years prior ......
-
State v. V.M.D., 2014–0990.
...148 Ohio St.3d 455or attempt to commit * * * any offense under division (A)(9)(a)" also meets the definition of an "offense of violence."71 N.E.3d 279 {¶ 15} R.C. 2953.36 speaks for itself. "Our first duty in statutory interpretation is to determine whether the statute is clear and unambigu......