Gallick v. Franklin Cnty. Bd. of Revision

[Cite as Gallick v. Franklin Cty. Bd. of Revision, 2018-Ohio-818.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
: No. 15AP-182
(C.P.C. No. 14CV-7188)
: No. 15AP-190
John J. Gallick, (C.P.C. No. 14CV-7189)
: No. 15AP-233
Appellant-Appellant, (C.P.C. No. 14CV-7185)
: No. 15AP-419
v. (C.P.C. No. 14CV-7193)
: No. 15AP-564
Franklin County Board of Revision et al., (C.P.C. No. 14CV-7190)
: No. 15AP-837
Appellees-Appellees. (C.P.C. No. 14CV-7187)
: No. 16AP-392
(C.P.C. No. 14CV-7186)
: No. 16AP-393
(C.P.C. No. 14CV-7194)
:
(REGULAR CALENDAR)
:
D E C I S I O N
Rendered on March 6, 2018
On brief: John J. Gallick, pro se. Argued: John J. Gallick.
On brief: Rich & Gillis Law Group, Mark H. Gillis, and
Richelle L. Thoburn, for appellee Board of Education of the
Columbus City Schools. Argued: Richelle L. Thoburn.
APPEALS from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Appellant, John J. Gallick, appeals judgments of the Franklin County Court
of Common Pleas that affirmed decisions of the Franklin County Board of Revision ("BOR")
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
2
and denied Gallick's motions for new trial. For the following reasons, we reverse some
judgments and dismiss the appeals of other judgments.
{¶ 2} In July 2012, Gallick purchased two adjacent, identical apartment buildings
located at 1688 and 1704 East Livingston Avenue in Columbus, Ohio (hereinafter
collectively referred to as "the Livingston properties"). Gallick bought the two buildings in
a single sale and paid a total of $120,000. Each building contained 15 units, and each unit
was assigned its own tax parcel number.
{¶ 3} For tax years 2012 and 2013, the Franklin County Auditor ("Auditor")
appraised the units at the following true values:
1688 East Livingston Avenue
Tax Parcel Number True Value
010-178688-00 (Unit A) $9,300
010-178689-00 (Unit B) $9,300
010-178690-00 (Unit C) $14,000
010-178691-00 (Unit D) $14,400
010-178692-00 (Unit E) $14,400
010-178693-00 (Unit F) $14,400
010-178694-00 (Unit G) $14,400
010-178695-00 (Unit H) $14,400
010-178696-00 (Unit J) $14,400
010-178697-00 (Unit K) $15,800
010-178698-00 (Unit L) $14,000
010-178699-00 (Unit M) $14,000
010-178700-00 (Unit N) $14,000
010-178701-00 (Unit P) $15,800
010-178702-00 (Unit Q) $15,800
1704 East Livingston Avenue1
Tax Parcel Number True Value
010-178703-00 (Unit A) $14,000
010-178704-00 (Unit B) $14,400
010-178705-00 (Unit C) $9,300
010-178712-00 (Unit K) $15,800
1The valuations of units D, E, F, G, H, and J of 1704 East Livingston Avenue are not at issue in this appeal.
Consequently, those units do not appear in this list.
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
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010-178713-00 (Unit L) $14,000
010-178714-00 (Unit M) $14,400
010-178715-00 (Unit N) $14,000
010-178716-00 (Unit P) $15,800
010-178717-00 (Unit Q) $15,800
{¶ 4} On March 22, 2013, Gallick filed multiple complaints with the BOR seeking a
decrease in the valuation of each unit. Each complaint challenged the valuation of three
units, resulting in 10 complaints (covering all 30 units). In response to each complaint,
appellee, the Board of Education of the Columbus City School District ("Board of
Education"), filed counter-complaints seeking no change in the Auditor's valuations. The
BOR combined the complaints and counter-complaints, and it held a single hearing on
them.
{¶ 5} At the April 10, 2014 hearing, Gallick testified and presented documentary
evidence. Gallick explained that he had purchased the Livingston properties after a realtor
informed him that the properties were on the market. Without asking the offering price,
Gallick placed a bid of $120,000 for both buildings. The previous owner accepted the bid,
and the closing occurred in July 2012. Gallick presented the BOR with copies of the
conveyance fee statement and deed to prove the occurrence of the sale and the sale price.
{¶ 6} According to Gallick, the true value of each unit was $4,000, which he arrived
at by dividing the $120,000 purchase price equally between the two buildings, and then
dividing $60,000 by 15, the number of units in each building. Gallick, who "own[s] that
whole block," also testified that $4,000 was "the going price" for apartment units in the
area. (Tr. at 8, 14.) The Board of Education presented no evidence or argument regarding
the Livingston properties at the hearing.
{¶ 7} In decisions issued June 13, 2014, the BOR accepted $4,000 as the true value
of each unit for the 2012 tax year. However, the BOR retained the Auditor's valuation of
each unit for the 2013 tax year. Gallick appealed the BOR's decisions as to the valuations
for the 2013 tax year to the trial court pursuant to R.C. 5717.05.
{¶ 8} Although the trial court did not consolidate all the appeals into one case, the
majority of the appeals proceeded similarly. Gallick and the Board of Education filed
virtually identical briefs in each appeal. In the appeals involving the units listed above, the
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
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trial court affirmed the decisions of the BOR. In some of the appeals, Gallick moved for a
new trial pursuant to Civ.R. 59. With one exception, the trial court denied those motions.2
{¶ 9} We have eight appeals involving the Livingston properties before this court:
(1) appeal No. 15AP-233, which involves units A, B, and C of 1688 East Livingston Avenue;
(2) appeal No. 16AP-392, which involves units D, E, and F of 1688 East Livingston Avenue;
(3) appeal No. 15AP-837, which involves units G, H, and J of 1688 East Livingston Avenue;
(4) appeal No. 15AP-182, which involves units K, L, and M of 1688 East Livingston Avenue;
(5) appeal No. 15AP-190, which involves units N, P, and Q of 1688 East Livingston Avenue;
(6) appeal No. 15AP-564, which involves units A, B, and C of 1704 East Livingston Avenue;
(7) appeal No. 15AP-419, which involves units K, L, and M of 1704 East Livingston Avenue;
and (8) appeal No. 16AP-393, which involves units N, P, and Q of 1704 East Livingston
Avenue.
{¶ 10} We consolidated the eight appeals. In his appellant's brief, Gallick assigns
the following errors:
[1.] The Board of Revision and the lower courts erred as a
matter of law by failing to base their property tax valuations
upon the recent arm's-length sale prices of Appellant's several
properties when the arm's-length nature of the sales were not
rebutted by the BOR or the Appellees, no new appraisal was
conducted by the auditor, no significant improvements were
made to the properties, and no other factors existed for the
Auditor or the BOR to dramatically increase the property
valuations notwithstanding the recency of the arm's-length
sales, thus requiring a remand to the Board of Revision and an
order for the BOR to revert back to the arm's-length sales prices
for tax valuation purposes.
[2.] The BOR and the lower courts erred by failing to take into
account that the valuations by the auditor and decisions
upholding same by the Board of Revision are not entitled to a
presumption of validity when monumental increases in
property valuations for all properties subject to this appeal
were unsustainable as a matter of fact and law when the auditor
failed to conduct a formal up-to-date appraisal, failed to
provide any comparable sales data, and failed to substantiate
that any significant improvements had been made to the
several properties, warranting reversal to the BOR and
2In appeal No. 15AP-190, rather than denying Gallick's motion for a new trial, the trial court deemed the
motion inactive.
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
5
Franklin County Auditor and a decrease in property valuations
commensurate with the original purchase prices.
[3.] The BOR and the lower courts erred as a matter of fact and
law by applying the incorrect legal standard to Appellant's
testimony and evidence presented to the BOR despite it being
reliable, substantial and probative, by failing to shift the burden
of proof to the BOR based upon Appellant's testimony, and by
failing to render an independent judgment to determine the
taxable value of the subject properties when there was no
evidence and no new appraisal supporting the auditor's
valuations.
[4.] The lower courts abused their discretion by failing to allow
Appellant's offer of additional evidence or at the very least
ordering a hearing on the evidence, and a hearing on the merits
of Appellant's claims.
[5.] The lower courts erred by denying, failing to conduct merit
reviews, and failing to hold hearings on Appellant's motion for
relief from judgment and motions for new trial.
[6.] The current property taxation scheme violates due process
because it fails to give meaningful notice to the taxpayer why
property valuations are increased, fails to provide for reasons
in decisions rendered by the BOR, and leaves courts on appeal
to guess at why valuations occurred causing insufficient judicial
review, leaving the taxpayer and public guessing why and how
valuations are rendered making it impossible to defend against
the valuation thus placing an improper burden of proof against
the taxpayer and an improper presumption that the auditor's
valuation is correct.
{¶ 11} Before we begin our review of the merits of Gallick's assignments of error, we
must determine which of his eight appeals are properly before this court. To do that, we
must consider whether Gallick filed all of his appeals in a timely manner.
{¶ 12} "An appeal as of right shall be taken by filing a notice of appeal with the clerk
of the trial court within the time allowed by Rule 4." App.R. 3(A). If an appellant fails to
meet the timing requirements of App.R. 4, the court of appeals lacks jurisdiction to hear
the appeal. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 17. A court of appeals
without jurisdiction must dismiss the appeal, since the court does not have the power or
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
6
authority to review the issues involved. Fougere v. Estate of Fougere, 10th Dist. No. 17AP-
72, 2017-Ohio-7905, ¶ 10.
{¶ 13} Pursuant to App.R. 4(A)(1), "a party who wishes to appeal from an order that
is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of
that entry." The timing requirement of App.R. 4(A)(1) is subject to App.R. 4(A)(3), which
provides that, "[i]n a civil case, if the clerk has not completed service of the order within the
three-day period prescribed in Civ.R. 58(B), the 30-day period[ ] * * * begin[s] to run on
the date when the clerk actually completes service." Thus, the clerk's failure to complete
service within three days of a final order's entry tolls the 30-day appeal period until service
is accomplished. On the other hand, if the clerk timely complies with Civ.R. 58(B), then the
30-day appeal period begins to run on the date of the final order's entry.
{¶ 14} App.R. 4(B) sets forth some exceptions to the timing requirements of App.R.
4(A). Of relevance to this appeal, under App.R. 4(B)(2)(b), if a party files a "timely and
appropriate" motion for a new trial under Civ.R. 59, "then the time for filing a notice of
appeal from the judgment or final order in question begins to run as to all parties when the
trial court enters an order resolving" the motion. Importantly, in order for a party to benefit
from the tolling effect of App.R. 4(B)(2)(b), the motion for a new trial cannot be untimely
filed or inappropriate under the circumstances. See Besman v. Leventhal, 8th Dist. No.
104414, 2017-Ohio-464, ¶ 13 (refusing to apply the App.R. 4(B)(2)(b) exception because the
appellant's motion for a new trial was inapplicable to the type of proceeding pending before
the trial court); Citibank (S.D.) N.A. v. Abu-Niaaj, 2d Dist. No. 2011 CA 45, 2012-Ohio-
2099, ¶ 9 (holding that an untimely motion for a new trial did not extend the 30-day period
for appealing a final order).
{¶ 15} Here, Gallick seeks to rely on the App.R. 4(B)(2)(b) exception in three cases:
15AP-233, 15AP-419, and 15AP-837. In each of these cases, the trial court entered a final
order affirming the BOR's decision. On same day as the entry of each final order, the clerk
served notice of that order on the parties and noted service on the docket as required by
Civ.R. 58(B). Thus, under App.R. 4(A), Gallick had 30 days from the date of each final
order's entry to file his notice of appeal. Gallick, however, failed to file notices of appeal
within the 30-day period. Instead, in each case, he moved for a new trial. In all three cases,
Gallick only filed a notice of appeal after the trial court denied him a new trial. To the extent
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
7
that Gallick seeks to appeal the judgments affirming the BOR's decisions, these notices of
appeal are only timely if the App.R. 4(B)(2)(b) exception extends the filing deadlines.
{¶ 16} Whether or not Gallick may claim an extension based on App.R. 4(B)(2)(b)
depends on whether his motions for new trial were appropriate under the circumstances.
This determination, in turn, requires this court to consider two issues: (1) whether Civ.R.
59, which governs motions for new trial, applies to appeals initiated under R.C. 5717.05, the
statutory basis for Gallick's appeals of the BOR's decisions to the trial court, and
(2) whether Gallick filed his motions after trials had occurred in the trial court.
{¶ 17} With few exceptions, the Ohio Rules of Civil Procedure "prescribe the
procedure to be followed in all courts of this state in the exercise of civil jurisdiction at law
or in equity." Civ.R. 1(A). However, "to the extent that [the rules] would by their nature be
clearly inapplicable," they do not apply to procedure in "special statutory proceedings."
Civ.R. 1(C)(8). Because Civ.R. 1(C)(8) only exempts the application of a procedural rule if
it is "clearly inapplicable," the Ohio Rules of Civil Procedure apply in special statutory
proceedings adversary in nature unless a good and sufficient reason exists not to apply to
the rules. Hambuechen v. 221 Mkt. N., Inc., 143 Ohio St.3d 161, 2015-Ohio-756, ¶ 7;
Ramsdell v. Ohio Civil Rights Comm., 56 Ohio St.3d 24, 27 (1990).
{¶ 18} An administrative appeal filed pursuant to a statute, such as an appeal
initiated under R.C. 5717.05, is a special statutory proceeding. Middlebrook v. United
Collection Bur., Inc., 10th Dist. No. 17AP-280, 2017-Ohio-8587, ¶ 8. Thus, Civ.R. 59 applies
in such appeals unless R.C. 5717.05 renders that rule clearly inapplicable. This court has
found that Civ.R. 59 is not clearly inapplicable to administrative appeals where the trial
court reviews de novo questions of law and fact. In re Appeal of Neff, 10th Dist. No. 85AP-
289 (Mar. 4, 1986); Quick v. Wolfe, 10th Dist. No. 81AP-561 (Aug. 20, 1981). In an R.C.
5717.05 appeal, a trial court reaches a decision de novo. Black v. Bd. of Revision, 16 Ohio
St.3d 11, 14 (1985). Consequently, we conclude that Civ.R. 59 applies to the appeals at issue
here.
{¶ 19} Our conclusion, however, does not end our analysis. Although the
administrative nature of a case may not preclude a motion for a new trial, such a motion is
only appropriate in cases where a trial has occurred. Wolf-Sabatino v. Sabatino, 10th Dist.
No. 12AP-307, 2012-Ohio-6232, ¶ 13 (holding that "a motion for a new trial properly lies
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
8
only after a trial"). Absent a trial, a motion for a new trial is a nullity. State ex rel. Batten
v. Reece, 70 Ohio St.2d 246, 248 (1982).
{¶ 20} A proceeding is a trial for Civ.R. 59 purposes when the indicia of trial
substantially predominate in the proceeding. First Bank v. Mascrete, Inc., 79 Ohio St.3d
503, 507 (1997). Those indicia include: (1) whether pleadings initiated the proceeding, (2)
whether the proceeding took place in court, (3) whether a judge or magistrate was present
and presided over the proceeding, (4) whether the parties or their counsel were present, (5)
whether the parties or counsel introduced evidence, (6) whether the parties or counsel
presented arguments in court, (7) whether a judge or magistrate decided issues of fact, (8)
whether the issues decided were central or ancillary to the primary dispute between the
parties, and (9) whether a judgment was rendered on the evidence. Id.{¶ 21} After considering the above indicia, courts have found motions for new trials
appropriate where there has been an in-court hearing succeeded by a judgment ruling on
the issues argued and evidence heard at the hearing. Fougere, 10th Dist. No. 17AP-72,
2017-Ohio-7905, at ¶ 15. Here, no such hearings happened. In each of the three cases at
issue, no proceedings occurred where the parties or counsel presented evidence and
argument in court to a trial judge or magistrate. Because there were no trials in the three
cases at issue, Gallick's motions for new trial were inappropriate and their filing did not toll
the 30-day period for appealing the judgments affirming the BOR's decisions. Gallick,
therefore, did not timely initiate appeals of the judgments affirming the BOR's decisions in
appeal Nos. 15AP-233, 15AP-419, and 15AP-837. Thus, we lack jurisdiction over those
judgments.
{¶ 22} Next, we must decide whether we may review the judgments in appeal Nos.
15AP-233, 15AP-419, and 15-837 that denied Gallick new trials. Although Gallick timely
appealed those judgments, another problem stands in the way of our review. As we
explained above, a motion for a new trial is a nullity unless it is filed after a trial has
occurred. Batten, 70 Ohio St.2d at 248. In the absence of a preceding trial, a judgment
entered on a motion for a new trial is also a nullity and a party cannot appeal from such a
judgment. See Johnson v. Geico Homesite, Inc., 6th Dist. No. OT-17-003, 2017-Ohio-7273,
¶ 8 ("[A]n appellate court cannot consider an appeal from a nullity."); Levy v. Ivie, 195 Ohio
App.3d 251, 2011-Ohio-4055, ¶ 15 (10th Dist.) (holding that a judgment deciding a null
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
9
motion is also a nullity and cannot be appealed). Here, because no trials occurred in the
three cases at issue, Gallick's motions for new trial and the judgments deciding those
motions constituted nullities. Gallick, therefore, cannot appeal those judgments to this
court. Accordingly, we dismiss appeal Nos. 15AP-233, 15AP-419, and 15AP-837 in their
entirety.
{¶ 23} Having determined that only appeal Nos. 15AP-182, 15AP-190, 15AP-564,
16AP-392, and 16AP-393 are properly before this court, we turn to reviewing Gallick's
assignments of error. By his first assignment of error, Gallick argues that the trial court
erred in ignoring the arm's-length sale that occurred five and one-half months prior to the
tax lien date. Gallick contends that the sale price constitutes the best evidence of the true
value of each unit, and consequently, the trial court erred in refusing to decrease the
valuations of each unit based on the $4,000 per unit sale price. We agree.
{¶ 24} In an R.C. 5717.05 appeal, the party appealing the board of revision's decision
bears the burden of proving its right to a reduction or increase in the board of revision's
determination of value. CABOT III-OH1M02, LLC v. Bd. of Revision, 10th Dist. No. 13AP-
232, 2013-Ohio-5301, ¶ 26. The trial court must consider the evidence heard by the board
of revision and any additional evidence admitted by the trial court, and apply its
independent judgment to determine the taxable value of the subject property. Black, 16
Ohio St.3d at 14; CABOT III-OH1M02, LLC at ¶ 16. On an appeal of the trial court's
judgment, an appellate court must decide whether the trial court abused its discretion in its
valuation determination. Black at paragraph one of the syllabus; CABOT III-OH1M02, LLC
at ¶ 16.
{¶ 25} The Ohio Constitution provides that "[l]and and improvements thereon shall
be taxed by uniform rule according to value." Ohio Constitution, Article XII, Section 2.
Consistent with that constitutional mandate, R.C. 5713.01(B) requires county auditors to
appraise real property "at its true value in money."
{¶ 26} R.C. 5713.03 governs how the true value of real property is determined. From
1976 to 2012, R.C. 5713.03 stated that, if any tract, lot, or parcel of real estate "ha[d] been
the subject of an arm's length sale between a willing seller and willing buyer within a
reasonable length of time, either before or after the tax lien date, the auditor shall consider
the sale price of such tract, lot, or parcel to be the true value for taxation purposes."
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
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(Emphasis added.) Am.Sub.H.B. No. 920, 136 Ohio Laws, Part II, 3182, 3247. Interpreting
this provision, the Supreme Court of Ohio held that former R.C. 5713.03 required the sale
price of a recent, arm's-length transaction to be the true value of the property. Berea City
School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 106 Ohio St.3d 269, 2005-Ohio-
4979, ¶ 13, superseded by statute as stated in Terraza 8, L.L.C. v. Franklin Cty. Bd. of
Revision, 150 Ohio St.3d 527, 2017-Ohio-4415, ¶ 26. The court later explained that former
R.C. 5713.03 "reject[ed] * * * appraisal evidence of the value of the property whenever a
recent, arm's-length sale price has been offered as evidence of value." Cummins Property
Servs., L.L.C. v. Franklin Cty. Bd. of Revision, 117 Ohio St.3d 516, 2008-Ohio-1473, ¶ 13,
superseded by statute as stated in Terraza 8, L.C.C. at ¶ 26.
{¶ 27} In 2012, the General Assembly significantly changed the language of R.C.
5713.03. In relevant part, the General Assembly replaced "shall" with "may," so the statute
now reads, "the auditor may consider the sale price * * * to be the true value for taxation
purposes." (Emphasis added.) 2012 Am.Sub.H.B. No. 487. House Bill 487 went into effect
on September 10, 2012. Consequently, the amended statute governs all valuations for tax
year 2013, which are determined as of January 1, 2013.3 Terraza 8, L.L.C. at ¶ 18. Here,
because Gallick challenges the valuations for tax year 2013, amended R.C. 5713.03 applies
to these appeals.
{¶ 28} Although amended R.C. 5713.03 overrode the holding of Berea, it did not
invalidate two rebuttable presumptions applied in valuation cases. Terraza 8, L.L.C. at
¶ 31-33. First, the presumption that "a submitted sales price 'has met all the requirements
that characterize true value' " remains. Terraza 8, L.L.C. at ¶ 32, quoting Cincinnati School
Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 78 Ohio St.3d 325, 327 (1997). Likewise,
under amended R.C. 5713.03, the presumption that " '[t]he best evidence of the "true value
of money" of real property is an actual, recent sale of the property in an arm's-length
transaction' " survives. Id. at ¶ 33, quoting Conalco, Inc. v. Monroe Cty. Bd. of Revision,
50 Ohio St.2d 129 (1977), paragraph one of the syllabus; accord Mann v. Cuyahoga Cty.
Bd. of Revision, __ Ohio St.3d __, 2017-Ohio-8820, ¶ 12 ("Under the version of R.C.
3" '[T]he first day of January of the tax year in question is the crucial valuation date for tax assessment
purposes.' " HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 124 Ohio St.3d 481, 2010-Ohio-687, ¶ 16,
quoting Freshwater v. Belmont Cty. Bd. of Revision, 80 Ohio St.3d 26, 29-30 (1997).
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
11
5713.03 that applies to tax year 2013, * * * a price from a recent arm's-length sale is not
conclusive evidence of a property's value but it nevertheless 'constitute[s] the best evidence
of the property's value.' ").
{¶ 29} To employ these presumptions, a proponent of a sale need not affirmatively
demonstrate with extrinsic evidence that a sale price reflects the value of the property.
Terraza 8, L.L.C. at ¶ 32. Instead, the proponent of the sale must only present basic
documentation of the sale, such as the conveyance fee statement and deed. Id.; Buckeye
Terminals, L.L.C. v. Franklin Cty. Bd. of Revision, __ Ohio St.3d __, 2017-Ohio-7664, ¶ 20
("The conveyance fee [statement] and deed create a rebuttable presumption that the sale
met the requirements that characterize true value."). If this initial burden is met, the
opposing party then has the burden of going forward with rebuttal evidence showing that
the sale price does not, in fact, reflect the property's true value.4 Terraza 8, L.L.C. at ¶ 32.
To satisfy its burden, the opposing party may present evidence showing that the sale was
not at arm's length or not recent to the tax lien date. Huber Heights City Schools Bd. of
Edn. v. Montgomery Cty. Bd. of Revision, __ Ohio St.3d __, 2017-Ohio-8819, ¶ 11. Where
the opposing party fails to demonstrate a reason to disregard the sale price as an indicator
of value, then the sale price is the best evidence of the property's true value. Lunn v. Lorain
Cty. Bd. of Revision, 149 Ohio St.3d 137, 2016-Ohio-8075, ¶ 18.
{¶ 30} Here, Gallick provided the BOR with copies of the conveyance fee statement
and deed showing the transfer of the Livingston Avenue properties to him. The conveyance
fee statement is dated July 16, 2012 and reflects a sale price of $120,000 for both Livingston
properties. With the presentation of this evidence, rebuttable presumptions arose that the
sale price met all the requirements of true value and constituted the best evidence of the
true value of the Livingston properties.5 Thus, the Board of Education had the burden to
4 The party against whom a presumption is directed has the burden to present evidence to rebut the
presumption. Cincinnati School Dist. Bd. of Edn. at 328. However, the burden of proof remains on the
party on whom it was originally cast. Id.; accord Dauch v. Erie Cty. Bd. of Revision, 149 Ohio St.3d 691,
2017-Ohio-1412, ¶ 20 ("The ultimate burden of proof d[oes] not shift.").
5 Gallick purchased the Livingston properties in a bulk sale, i.e., " 'a sale of numerous real estate parcels at
an aggregate price as part of a single deal.' " Buckeye Terminals, L.L.C. at ¶ 17, quoting St. Bernard Self-
Storage, L.L.C. v. Hamilton Cty. Bd. of Revision, 115 Ohio St.3d 365, 2007-Ohio-5249, ¶ 15. Ordinarily, "a
bulk sale raises the additional question 'whether the proffered allocation of [the] bulk sale price to the
particular parcel[s] of real property is "proper." ' " Id. at ¶ 18, quoting St. Bernard Self-Storage, L.L.C. at
¶ 15. In this case, however, the Board of Education has never challenged the propriety of Gallick's allocation
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
12
present evidence to the contrary. The Board of Education argues that it met its burden by
eliciting testimony from Gallick that established that the sale of the Livingston properties
was not recent to the tax lien date of January 1, 2013.
{¶ 31} A sale is recent if it is made within a reasonable length of time of the tax lien
date. Health Care REIT, Inc. v. Cuyahoga Cty. Bd. of Revision, 140 Ohio St.3d 30, 2014-
Ohio-2574, ¶ 22. Consequently, one component of recency is the period of time that has
elapsed between the sale date and the tax lien date. Id. Temporal proximity, however, is
not the sole factor affecting recency. Emerson v. Erie Cty. Bd. of Revision, 149 Ohio St.3d
148, 2017-Ohio-865, ¶ 19; Worthington City School Bd. of Edn. v. Franklin Cty. Bd. of
Revision, 124 Ohio St.3d 27, 2009-Ohio-5932, ¶ 32. The determination of whether a sale
is recent requires consideration of all factors that would, by changing with the passage of
time, affect the value of the property. Emerson at ¶ 19; Cummins Property Servs., L.L.C.,
117 Ohio St.3d 516, 2008-Ohio-1473, at ¶ 35. General developments in the marketplace,
along with conditions more specific to the property, are relevant in determining recency.
Cummins Property Servs., L.L.C. at ¶ 35. With regard to changes in market conditions, the
speed of the changes is an important consideration. "If the market is changing rapidly, then
the selling price will not be the best evidence of true value for as long a period of time as
when the market is not changing or changing very slowly." New Winchester Gardens v.
Franklin Cty. Bd. of Revision, 80 Ohio St.3d 36, 44 (1997), overruled in part on other
grounds, Cummins Property Servs., L.L.C. at ¶ 25.
{¶ 32} Here, the Board of Education contends that market conditions between the
sale date (July 16, 2012) and the tax lien date (January 1, 2013) changed to such a degree
as to invalidate the sale price as a measure of the Livingston properties' true value. The
Board of Education points to Gallick's testimony before the BOR as evidence of its
contention. During the April 10, 2014 BOR hearing, Gallick testified about the sale prices
of properties located near the subject properties that he purchased in arm's-length
transactions dating from April 2008 to the hearing date. Gallick stated, "You can see --
Actually, the value of the properties went down. I mean, the most -- the newer -- the most
of the sale price. Consequently, the Board of Education has waived any argument concerning the propriety
of the allocation. Emerson v. Erie Cty. Bd. of Revision, 149 Ohio St.3d 148, 2017-Ohio-865, ¶ 20; RNG
Properties, Ltd. v. Summit Cty. Bd. of Revision, 140 Ohio St.3d 455, 2014-Ohio-4036, ¶ 33.
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
13
recent properties I'm buying, I'm buying cheaper than the ones I bought in '08 and '09."
(Tr. at 5.) Later in the hearing, Gallick represented, "And I’m telling you right now the value
of properties have gone down in '11 and '12 and '13 from where they were in '10. * * * The
market's down. I may contract for properties now that are even lower than 4,000 a unit."
(Tr. at 20.)
{¶ 33} Thus, Gallick testified to a general downward trend in market prices from
2008 and 2014, and a drop in the market between 2010 and 2011/2012/2013. However,
for our purposes, the relevant period is between July 16, 2012 and January 1, 2013. Gallick
did not state that market conditions changed during that specific span of time, much less
that the market changed so rapidly that a sale that occurred only five and one-half months
prior to the tax lien date could no longer evince true value. Testimony of a downward trend
in the market over seven years is not evidence that the market rapidly dropped between
July 16, 2012 and January 1, 2013. Consequently, Gallick's testimony regarding the
condition of the marketplace does not rebut the presumptions that the sale price met all the
requirements of true value and best reflected the true value of the Livingston properties.
{¶ 34} Next, the Board of Education reverses course and eschews its contention that
the Livingston properties' value dropped. It, instead, argues that rising tenancy levels and
a "clean up" of the properties raised the value of the properties such that the July 16, 2012
sale cannot be considered recent to the January 1, 2013 tax lien date. However, again, the
evidence the Board of Education relies on does not support its argument.
{¶ 35} At the BOR hearing, the Board of Education's attorney asked Gallick, "And
how's your occupancy been since your purchase? Did it increase any?" (Tr. at 9.) Gallick
answered, "It's increased a little." Id. Thus, Gallick testified that the number of tenants at
the Livingston properties rose between the July 16, 2012 sale and the April 10, 2014
hearing, and not that the number of tenants rose between the July 16, 2012 sale and the
January 1, 2013 tax lien date. Moreover, Gallick did not quantify the increase by stating
how many more tenants he now has. Assuming that an increase in tenancy occurred
between July 16, 2012 and January 1, 2013, the evidence regarding that increase is too
meager to prove that the tenancy level affected the value of the properties between the two
relevant dates. Consequently, evidence regarding the tenancy level does not rebut the
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
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presumptions regarding true value that arose when Gallick adduced evidence of the July
2012 sale.
{¶ 36} With regard to the physical condition of the Livingston properties, the Board
of Education's attorney asked Gallick, "Can you tell us a little about what condition [the
properties] were in and whether any of them needed any improvements or repairs after
your purchase[?]" (Tr. at 5.) Gallick responded that, "[b]y and large, they just needed
cleaning up." Id. The attorney then asked, "So none of them required any kind of capital
or structural updates or improvements?" (Tr. at 6.) Gallick replied, "No." Id.{¶ 37} Pursuant to R.C. 5713.03(B), the sale price in an arm's-length transaction
cannot be the true value of the property if, subsequent to the sale, "[a]n improvement is
added to the property." With respect to buildings or structures, an "improvement" is "a
permanent addition, enlargement, or alteration that, had it been constructed at the same
time as the building or structure, would have been considered a part of the building or
structure." R.C. 5701.02(D) (setting forth definitions of certain terms used in R.C. Chapter
57). Consequently, ameliorative measures such as replacing carpet and repainting do not
constitute improvements that preclude a sale price from reflecting the true value of
property. Cattell v. Lake Cty. Bd. of Revision, 11th Dist. No. 2009-L-161, 2010-Ohio-4426,
¶ 28-29.
{¶ 38} Here, nothing in Gallick's testimony or the other evidence explicates exactly
what Gallick did to "clean up" the Livingston properties. It is clear, however, that Gallick
did not go so far as to perform the type of improvements contemplated in R.C. 5713.03(B).
Thus, that provision does not bar the use of the sale price to set the true value of the
Livingston properties.
{¶ 39} Nevertheless, even if post-sale enhancements do not qualify as
improvements, they could conceivably change a property sufficiently to affect the recency
of a sale. Here, however, the Board of Education fails to direct us to any evidence that
Gallick performed any "clean up" between July 16, 2012 and January 1, 2013 or, assuming
a "clean up" occurred, the degree to which the properties were "cleaned up." Without more
detail regarding the "clean up," the record lacks proof that the "clean up" was so significant
that it altered the value of the properties. Thus, evidence related to the "clean up" does not
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
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rebut the presumptions regarding true value that arose when Gallick presented evidence of
the July 2012 sale.
{¶ 40} The Board of Education has only ever argued the lack of recency to rebut the
presumptions at issue. Nevertheless, in appeal Nos. 16AP-392 and 16AP-393, the trial
court determined that the July 2012 sale did not qualify as an arm's-length transaction.
We, therefore, must consider whether the record contains evidence of the nature of the
transaction that negates the presumptions regarding true value.
{¶ 41} Three factors are relevant in deciding whether a transaction occurred at arm's
length: (1) whether the sale was voluntary, i.e., without compulsion or duress; (2) whether
the sale took place in an open market; and (3) whether the buyer and seller acted in their
own self-interest. Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision,
141 Ohio St.3d 243, 2014-Ohio-4723, ¶ 47; Walters v. Knox Cty. Bd. of Revision, 47 Ohio
St.3d 23 (1989), syllabus. Here, the trial court concluded that the July 2012 sale was not
an arm's-length transaction because Gallick neither knew nor asked the seller's listing price
before Gallick offered to buy the properties for $120,000. We do not see how Gallick's
failure to find out the list price prior to placing an offer results in the conclusion that that
the sale was not at arm's length. Gallick's decision to place an offer without knowing the
asking price is neither evidence of compulsion or duress, nor evidence that Gallick betrayed
his own self-interest. Gallick testified that the prior owner placed the Livingston properties
on the market, a realtor informed him that the properties were available for sale, he viewed
the properties and decided to make an offer of $120,000, and the seller accepted his offer.
These facts establish that the July 2012 sale was an arm's-length transaction.
Consequently, evidence regarding the circumstances of the July 2012 sale do not rebut the
presumptions regarding true value that arose when Gallick presented evidence of the sale.
{¶ 42} Where a rebuttable presumption exists, the party challenging the
presumption must produce evidence that counterbalances the presumption or leaves the
case in equipoise. Bd. of Edn. of the Cleveland Mun. School Dist. v. Cuyahoga Cty. Bd. of
Revision, 107 Ohio St.3d 250, 2005-Ohio-6434, ¶ 15. Here, the Board of Education failed
to produce such evidence. Consequently, the presumptions prevail, and thus, the July 2012
sale price constitutes the best evidence of the true value of the Livingston Avenue
properties. Because Gallick established $4,000 as the true value of each unit for the
Nos. 15AP-182, 15AP-190, 15AP-233, 15AP-419, 15AP-564, 15AP-837, 16AP-392, and 16AP-393
16
purposes of tax year 2013, the trial court erred in affirming the BOR's decisions.
Accordingly, we sustain Gallick's first assignment of error.
{¶ 43} By the remaining assignments of error, Gallick either advances alternative
bases for finding error in the affirmance of the BOR's decisions or seeks a hearing before
the trial court to present evidence regarding the true value of the Livingston properties.
Given our ruling on Gallick's first assignment of error, his other assignments of error are
moot, and consequently, we do not rule upon them.
{¶ 44} For the foregoing reasons, we dismiss appeal Nos. 15AP-233, 15AP-419, and
15AP-837. We sustain the first assignment of error in appeal Nos. 15AP-182, 15AP-190,
15AP-564, 16AP-392, and 16AP-393, which renders moot the second through sixth
assignments of error. We reverse the judgments of the Franklin County Court of Common
Pleas in appeal Nos. 15AP-182, 15AP-190, 15AP-564, 16AP-392, and 16AP-393. We remand
those five cases to the trial court so that it may certify to the Auditor the true value of $4,000
per tax parcel for units D, E, F, K, L, M, N, P, and Q of 1688 East Livingston Avenue and
units A, B, C, N, P, and Q of 1704 East Livingston Avenue for tax year 2013.
Appeal Nos. 15AP-233, 15AP-419, and 15AP-837 dismissed;
appeal Nos. 15AP-182, 15AP-190, 15AP-564, 16AP-392, and 16AP-393
reversed and remanded with instructions.
SADLER and BRUNNER, JJ., concur.