Schwartz v. Cuyahoga Cnty. Bd. of Revision

Decision Date27 August 2015
Docket NumberNo. 2013–1955.,2013–1955.
Citation143 Ohio St.3d 496,39 N.E.3d 1223,2015 Ohio 3431
Parties SCHWARTZ, Trustee, Appellant, v. CUYAHOGA COUNTY BOARD OF REVISION et al., Appellees.
CourtOhio Supreme Court

J. Alex Morton, Cleveland, for appellant.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Reno J. Oradini Jr., Assistant Prosecuting Attorney, for appellees.


{¶ 1} This case involves a dispute over the value of a two-family dwelling in Cuyahoga County. Appellant, Fred P. Schwartz, purchased the property from the Secretary of the United States Department of Housing and Urban Development ("HUD") for $5,000 in October 2011. The county fiscal officer valued the property at $126,800 for tax year 2011, and Schwartz sought a reduction to $30,000. The Cuyahoga County Board of Revision ("BOR") retained the fiscal officer's valuation, and the Board of Tax Appeals ("BTA") affirmed.

{¶ 2} Schwartz appealed and now argues that the BTA acted unreasonably and unlawfully by rejecting the 2011 sale price as the best evidence of the property's value, by assigning little weight to his comparable-sales data, and by failing to require the county fiscal officer and the BOR (collectively, the "county appellees") to introduce evidence supporting their $126,800 valuation. He also asserts a due-process claim.

{¶ 3} For the reasons explained below, the BTA erred by rejecting the 2011 sale price as the best evidence of the property's value. We therefore reverse the BTA's decision.


The property

{¶ 4} The property at issue is located at 3259 Desota Avenue in Cleveland Heights, Ohio, and has been improved by a two-family dwelling.

{¶ 5} Huntington National Bank acquired the property at a sheriff's sale in August 2010, and HUD assumed the property from Huntington in September 2010. Schwartz purchased the property from HUD for $5,000 on October 17, 2011, and holds it in trust for Vladimir Victor.

Valuation and BOR proceedings

{¶ 6} In tax year 2011, the Cuyahoga County fiscal officer valued the property at $126,800, and Schwartz filed a complaint seeking a decrease to $30,000. No countercomplaint was filed.

{¶ 7} The BOR held a hearing on January 25, 2013. Schwartz did not appear, but he was represented by counsel and presented testimony from Victor about the property and the 2011 sale.

{¶ 8} Victor testified that he had learned that the property was for sale while caring for an adjacent home on Desota Avenue. The property was listed with Sarver Realty, and a sale sign was posted in the yard for three years. Victor made several attempts to purchase the property, but his offers were not accepted. Later, Sarver Realty contacted Victor after a sale to another buyer fell through. Sarver Realty told Victor that if he did not buy it, the property would be demolished.

{¶ 9} At the time of the hearing, Victor was renting out the property's lower suite for a three-month term, at a rate of $650 per month. He did not have any other renters lined up. Victor testified that the city had sent notice of "a lot of" housing-code violations, but had not sent formal notice of an intent to raze the property.

{¶ 10} Schwartz's counsel submitted eight exhibits documenting other sales on Desota Avenue between September 2008 and January 2013, many of which had been sheriff's sales or foreclosure sales. At the hearing, he challenged the BOR to find a comparable with a higher sale price on that street.

{¶ 11} On February 14, 2013, the BOR issued a decision retaining the fiscal officer's valuation. The BOR's "Oral Hearing Worksheet and Journal Entry" noted:

No evidence received to substantiate claim that property is not inhabitable. BOR notes sale 10/17/11 from HUD. Not arms length. Sales submitted are bank & repo sales in comp sales report with no analysis as to how properties are comparable. Information is but raw sales data which BOR is left to speculate. Use of neighboring assessed value to sale price is not valid indicator of value.

BTA proceedings

{¶ 12} Schwartz appealed to the BTA under R.C. 5717.01, again requesting a reduction to $30,000. He submitted a brief in support, but the fiscal officer and BOR did not file briefs.

{¶ 13} In his brief, Schwartz contended that the 2011 sale of the property for $5,000 was a voluntary, arm's-length transaction in that the property was publicly advertised as part of HUD's "inventory of foreclosed properties," Schwartz was the high bidder, and he did not have a special relationship with HUD.

{¶ 14} Next, Schwartz argued that a market-data analysis supported a valuation of $30,000. See Ohio Adm.Code 5703–25–05(G) and 5703–25–11(C)(1). He relied on the eight comparables that he had submitted to the BOR as well as new evidence of "Other Sales on Desota Avenue Closest in Time to 01/01/2011." For each allegedly comparable property, Schwartz provided the fiscal officer's 2011 valuation. Ultimately, he asked, "is it realistic and fair to state that HUD could have sold the property for $126,800 in such a depressed market?"

{¶ 15} The BTA held a hearing on October 28, 2013. At the hearing, Schwartz's counsel explained that even though the property "was purchased for $5,000 on October 17th, 2011," Schwartz was "agreeable to a valuation of 30. * * * So I think he's being fair."

{¶ 16} The BTA affirmed. In its decision, the BTA explained that Schwartz had the burden to prove a value of $30,000. The BTA rejected the 2011 sale price as the best evidence of value, reasoning that a HUD sale does not indicate market value. The BTA then observed that Schwartz's information about other properties was "nothing more than a list of raw sales data." BTA No. 2013–608, 2013 WL 6834186, *2 (Nov. 13, 2013). Therefore, the BTA stated, it was "left to speculate as to how common differences, e.g., location, size, quality of construction of improvements, nature of amenities, date of sale as opposed to tax lien date, etc., may affect a valuation determination." Id. Ultimately, the BTA found "an insufficient basis upon which to alter the fiscal officer's original assessment of the property." Id .

{¶ 17} Schwartz appealed and asserts four propositions of law.1


{¶ 18} "A party seeking an increase or decrease in valuation bears the burden of proof before a board of revision." Snavely v. Erie Cty. Bd. of Revision, 78 Ohio St.3d 500, 503, 678 N.E.2d 1373 (1997). Likewise, "[w]hen cases are appealed from a board of revision to the BTA, the burden of proof is on the appellant * * * to prove its right to an increase [in] 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). To meet that burden, the appellant "must present competent and probative evidence to make its case"; it is not enough to merely introduce evidence that calls the board of revision's valuation into question. Id.

{¶ 19} This court reviews BTA decisions only to determine whether they are "reasonable and lawful." R.C. 5717.04. In doing so, we defer to the BTA's factual findings, including determinations of property value, 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. By contrast, we review the BTA's legal determinations de novo. Crown Communication, Inc. v. Testa, 136 Ohio St.3d 209, 2013-Ohio-3126, 992 N.E.2d 1135, ¶ 16.

The BTA erred by rejecting the 2011 HUD sale price as evidence of value

{¶ 20} Schwartz's first proposition of law asserts that the BTA acted unreasonably and unlawfully by finding that the 2011 sale price for the property, $5,000, was not the best evidence of value.2

The 1851 Ohio Constitution did not implicitly nullify R.C. 5713.04's restriction on using prices from an auction or forced sale

{¶ 21} As an initial matter, Schwartz argues that the 1851 Ohio Constitution implicitly nullified the statutory provision that states that "[t]he price for which such real property would sell at auction or forced sale shall not be taken as the criterion of its value." R.C. 5713.04.

{¶ 22} The General Assembly initially adopted a restriction on using prices from auctions and forced sales as evidence of property value in 1846, in language very similar to that of current R.C. 5713.04. See 44 Ohio Laws 91. Five years later, Ohioans approved the 1851 Ohio Constitution. Article XII, Section 2 of the 1851 Constitution required the General Assembly to pass laws taxing real property "according to its true value in money."3 50 Ohio Laws 3, 26. Schwartz contends that "the adoption of Article XII, Section 2, elevating to constitutional status the command that real property be taxed ‘according to its true value in money’ by implication nullified the conflicting statutory language" about not treating auction and forced sale prices as the criterion of value.

{¶ 23} Repeal by implication, even by a constitutional provision, has long been disfavored. See State ex rel. Evans v. Dudley, 1 Ohio St. 437, 441 (1853) ; State ex rel. Stokes v. Probate Court of Cuyahoga Cty., 17 Ohio App.2d 247, 249–250, 246 N.E.2d 607 (8th Dist.1969). To determine whether a constitutional provision implicitly repealed a statutory provision, this court considers whether there is a clear "repugnancy between the provisions" and whether they are "so contrary to each other that they cannot be reconciled." Evans at 441. If the General Assembly could have enacted the same law even after the adoption of the later constitutional language, then the law "must be held constitutional."

State v. Medbery, 7 Ohio St. 522, 528 (1857). If not, then the law "must be held unconstitutional and void." Id.

{¶ 24} Here, the statutory provision at issue is reconcilable with the 1851 constitutional requirement to tax property "according to its true value in money." The auction-and-forced-sale provision of R.C. 5713.04 codifies a general presumption that a sale price from an...

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    • November 23, 2021
    ...the case with instructions that the $5,000 sale price be used as the property's value for the 2011 tax year. Schwartz v. Cuyahoga Cty. Bd. of Revision , 143 Ohio St.3d 496, 2015-Ohio-3431, 39 N.E.3d 1223, ¶ 31-32 (" Schwartz I "). Schwartz and the county then agreed that the property would ......
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    ...price be used as the property's value for the 2011 tax year. Schwartz v. Cuyahoga Cty. Bd. of Revision, 143 Ohio St.3d 496, 2015-Ohio-3431, 39 N.E.3d 1223, ¶ (“Schwartz I”). Schwartz and the county then agreed that the property would be valued at $12, 500 for the next three years. {¶ 6} In ......
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