Willow, Inc. v. Yankton County, 11627

• Decision Date: 19 December 1975
• Docket Number: No. 11627,11627
• Citation: 89 S.D. 643,237 N.W.2d 660
• Parties: In the Matter of the Appeal of Willow, Inc. from its Assessment for the Year 1973. WILLOW, INC., a corporation, Appellant, v. YANKTON COUNTY, South Dakota, Respondent.
• Court: South Dakota Supreme Court

Page 660

237 N.W.2d 660

89 S.D. 643

In the Matter of the Appeal of Willow, Inc. from its Assessment for the Year 1973 WILLOW, INC., a corporation, Appellant, v. YANKTON COUNTY, South Dakota, Respondent.

No. 11627.

Supreme Court of South Dakota.

Dec. 19, 1975.

M. T. Woods, of Woods, Fuller, Shultz & Smith, Sioux Falls, for appellant.

Richard D. Hagerty, Larry F. Hosmer, Yankton, for respondent.

DOYLE, Justice.

This case constitutes an appeal by Willow, Inc. (Willow) from an assessment of its real property for the year 1973.

Willow's principal contention is that the income approach alone should be employed in determining the true and full value of its property; evidence of a previous sale of the property in question and evidence of previous sales of arguably comparable properties should be rejected as inappropriate for the court and assessor to consider in the face of evidence as to income.

The taxpayer appealed to the County Board of Equalization which denied relief. The taxpayer thereupon appealed to the circuit court which, after a trial de novo, also denied relief. Willow now comes before this court, and we affirm the trial court on all issues.

I. The Facts.

Willow was organized for the apparent purpose of purchasing and operating the Kochi Motel in Yankton, South Dakota. The corporation accomplished this objective in two steps. In 1970 the corporation purchased two motels, the swimming pool and the ingress and egress to the operation, giving a contract for deed for $575,000. In 1971 the corporation signed a contract for deed for $850,000 for the remainder of the property. This property consisted of meeting rooms, business offices, a lounge and a bowling alley. The aggregate price for the two sections appears to total $1,425,000. For some reason, however, the trial court found and the appeal has been brought on the assumption that the selling price was $1,300,000. This discrepancy is not harmful to the taxpayer, and for the purpose of this opinion the $1,300,000 figure will be employed. Willow's property was assessed at $745,000 true and full value in 1973. Its taxable value was computed at 60% Of its full and true value or $452,370.

II. Full and True Value.

The first controversy in this case, as in Yadco v. Yankton County, 1975, S.D., 237 N.W.2d 665, also decided today, is whether the trial court's determination of true and full value is to be sustained. As noted in Yadco, the determination of true and full value commonly involves consideration of various factors, including "replacement cost less proper deductions * * * income from the property,' Sheraton-Midcontinent Corp. v. County of Pennington, (1959, 77 S.D. 554, 95 N.W.2d 892); "Evidence of actual sales of other lands," when such sales are made by willing buyers to willing sellers, Tidball v. Miller, (1948, 72 S.D. 243, 32 N.W.2d 683); and previous sales of the particular property in question, Plaza Hotel Assoc. v. Wellington Assoc., Inc., 1973, 73 Misc.2d 6, 340 N.Y.S.2d 796.' Yadco v. Yankton County, supra.

The evidence favorable to the verdict of the trial court may be summarized as follows. First, the precise property in question was sold in 1970 and 1971 for $1,300,000, well above the ultimate finding of true and full value of $745.000. Other courts have occasionally spoken of the very great weight which can be assigned to a contemporaneous sale. See, e.g., Plaza Hotel Assoc. v. Wellington Assoc., Inc., 1973, 73 Misc.2d 6, 340 N.Y.S.2d 796. Of course, such weight should not be given to a sale in all situations, and the time lapse between the sale and the assessment here prevents us from ascribing overwhelming importance to the sale in this case. It is, however, entitled to at least some weight in this situation.

A consideration which might be said to be pertinent here is that a sale of property under conditions approximating a forced sale is never to be considered as a criterion of value. Tidball v. Miller, 1948, 72 S.D. 243, 32 N.W.2d 683; SDCL 10--6--33. As noted above, two transactions were involved in the transfer of the property at issue to its present owners. The first part of the property was purchased for $575,000 under apparently normal market conditions. There was testimony that the second part of the property was purchased under duress and for an excessive price--$850,000. According to the testimony, the owner of the second piece of property did not maintain high standards in operating his property (the meeting rooms, lounge, business area and bowling alley) and this in turn adversely affected Willow's motel business. It was contended at trial that Willow was therefore forced to purchase the second piece of property.

The trial court apparently rejected the duress theory, noting in Finding of Fact IV that 'the transaction was between a willing purchaser and a willing seller under open market conditions.'

The taxpayer has not attempted to refute this finding and it therefore stands as the law of the case.

It might be argued that the taxpayer does launch a general attack on Finding of Fact IV in his Assignment of Error I. That Assignment states:

'1. The Court erred in making its Finding of Fact IV because all the evidence shows that the sale price mentioned was, as appellant's president said, 'way too much'. (T 26 L 23 and the testimony of the witnesses Heuer T 5--30, DesJarlais T 30--48 and Hanson T 48--72, ESP. 72 L 18--22 proved this to be correct) * * *.'

The foregoing is clearly insufficient to raise the issue in that it fails to 'plainly point out' the alleged error. SDCL 15--29--6. A quotation that the sale was for 'way too much' does not direct the court's attention to the possibility that the sale was not one between a willing buyer and a willing seller. Furthermore, the assignment does not 'state the particulars in which the evidence is claimed to be insufficient' to sustain the finding of fact. SDCL 15--29--6. A general reference to 70 pages of testimony is, of course, inadequate to accomplish this.

However, even if this court were to find that the assignment was sufficient or that the matter comes under the exception in Western Surety Co. v. Schroeder, 1922, 45 S.D. 115, 186 N.W. 562, we note that the taxpayer has not mentioned the willing buyer-willing seller controversy at all in his brief. Thus, although the taxpayer regarded the matter as important enough to pursue at the trial court level, we can only conclude that he has abandoned it on appeal. See Boe v. Healy, 1969, 84 S.D. 155, 168 N.W.2d 710.

We are therefore required to find that the $1,300,000 sale was made under the willing buyer-willing seller test; it thus stands as evidence that the true and full value of the property in question was not below the $745,000 value set by the assessor. As indicated above, the evidence is not as strong as it might have been had the sale occurred at a more recent date.

Further evidence supporting the county's case was brought forth by way of testimony by Mr. Miller, a professional appraiser. Mr. Miller testified that in his opinion there had been sales of similar motels in the Yankton area which involved smaller motels constructed of wood....