FOGG-AKRON ASSOCIATES, L.P., APPELLANT, v. SUMMIT COUNTY BOARD OF REVISION ET AL., APPELLEES.
No. 2009-0316
Supreme Court of Ohio
Submitted December 2, 2009—Decided December 10, 2009.
[Cite as Fogg-Akron Assoc., L.P. v. Summit Cty. Bd. of Revision, 124 Ohio St.3d 112, 2009-Ohio-6412.]
CUPP, J., concurs in judgment only.
Robert Cabrera, for appellant.
Patrick D. Riley, for appellee.
Per Curiam.
{¶ 1} Appellant, Fogg-Akron Associates, L.P. (“Fogg” or “owner“), appeals from a decision of the Board of Tax Appeals (“BTA“) cоncerning the tax-year-2005 update to the value of Fogg‘s property. The BTA rejected Fogg‘s challenge to the update and adopted the board of revision‘s valuation of the рroperty. Because Fogg has not presented an adequate jurisdictional or evidentiary basis for relief, we affirm the BTA‘s decision.
Facts
{¶ 2} On March 30, 2006, Fogg filed a complaint against the tax-year-2005 valuation of a 5.93-acre parcel that Fogg owns in Summit County. The parcel is improved with two 48,000-square-foot warehouse buildings that were constructed in 1989, and the Summit County Fiscal Officer had assigned a true value of $2,934,830 to the property. The complaint states as the sole reason for changing the value that the “County Auditor‘s valuation exceeds true market value.”
{¶ 4} The transcript of proceedings at thе BTA is sparse. The BTA decision, issued on January 13, 2009, recites that the parties waived the presentation of evidence at a hearing and failed to file briefs.2
{¶ 5} In its decision, the BTA reviewed the еvidence that Fogg had presented to the BOR and concluded that it could not “rely upon or utilize the information presented by Mr. McVeigh to the board of revision because it is insufficient to suрport the property owner‘s conclusion of value [$2,500,000].” The BTA faulted the lack of an “appraisal report from a qualified appraiser,” noted that the evidence was limited to a “discussion of the history of the property and its vacancy rates,” and found that Fogg had failed to “substantiate the value sought.” Accordingly, the BTA adopted the county‘s valuation.
{¶ 6} Fogg appealed to the court on February 11, 2009.
Analysis
{¶ 7} On appeal, Fogg does not claim that the BTA erred by rejecting the evidence that it presented to the BOR. Instead, Fogg contests the BTA‘s decision on three grounds.
{¶ 8} First, Fogg contends that the “continuing complaint” rule at
{¶ 9} There is no evidence that the present case involves a continuing complaint. In particular, the record does not show that the proceedings relating to the complaint for tax year 2003 extended into 2005. In plain terms,
{¶ 10} Moreover, Fogg actually filed a complaint for tax year 2005, thereby initiating the case that is now before us. As Fogg‘s counsel explicitly acknowledged at oral argument, we have held that the filing of a “fresh complaint“—in this case, the filing of the current complaint specifically pertaining to tax year 2005—terminates the continuation of an earlier complaint, as long as the new complaint is procedurally valid. Id., citing Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision (1996), 74 Ohio St.3d 639, 643, 660 N.E.2d 1179. Thus, the filing of the 2005 complaint “halted the automatiс carryover of the value determined” in the 2003 complaint, even if a factual basis otherwise existed for viewing the 2003 complaint as continuing into tax year 2005. Id.
{¶ 11} Second, Fogg argues that the uрdated value for 2005, $2,934,800, exceeds the value determined by the BOR for 2003 and 2004 ($2,499,870) by 17 percent. Fogg acknowledges that the fiscal officer had authority to perform an upward adjustment as part оf the triennial update in Summit County. See Cleveland Mun. School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 105 Ohio St.3d 404, 2005-Ohio-2285, 827 N.E.2d 306, ¶ 2 (explaining that property must be reappraised every six years with an interim update of value threе years after each reappraisal). Without offering evidence, Fogg asserts that the fiscal officer generally raised property values by five percent. Based on this bare assertion, Fogg contends that the 17-percent increase in the valuation of its own property violates the uniformity mandated by
{¶ 12} This argument fails on both jurisdictional and evidentiary grounds. First, the notice of appeal to this court does not contain any assignment of error that raises the update-percentage issue or the uniformity issue. It follows that we have no jurisdiction to grаnt Fogg relief on the basis of such an argument. See Newman v. Levin, 120 Ohio St.3d 127, 2008-Ohio-5202, 896 N.E.2d 995, ¶ 28. Second, the record contains no evidence regarding what percentage increase the fiscal officer applied to other properties. Therefore, there is no basis for comparing the increase in value of Fogg‘s property with the increase in value of other properties.
{¶ 14} First, although the earlier valuation was orally discussed at the BOR hearing, the only direct documentation of that valuation that has evidentiary force is the “Value Change Notice.” That document is not included in the BOR transcript and was presented for the first time as an attachment tо Fogg‘s post-decision brief at the BTA. It follows that the BTA did not err when it failed to consider the document, because the board did not even have the document before it when it issued its decision оn January 13, 2009.3 See Columbus Bd. of Edn. v. Franklin Cty. Bd. of Revision (1996), 76 Ohio St.3d 13, 16-17, 665 N.E.2d 1098 (documents that were “not part of the original record from the BOR and were submitted after the BTA hearing” had to be “disregarded by the BTA“).
{¶ 15} But even if the value determined for 2003 and 2004 had properly been documented in the record, Fogg‘s argument fails as a matter of law. We have held that when determining the true value of real property for the current tax year, the assessor should not accord presumptive or prima facie validity to an earlier year‘s valuation. See Olmsted Falls Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 122 Ohio St.3d 134, 2009-Ohio-2461, 909 N.E.2d 597, ¶ 20-21. The reason a prior year‘s valuation should not be “deemed to be сorrect” is that it “may not be correct.” Id. at ¶ 21, quoting Freshwater v. Belmont Cty. Bd. of Revision (1997), 80 Ohio St.3d 26, 28, 684 N.E.2d 304. A contrary rule would have the effect of carrying forward past errors into the current year‘s valuation, thereby impairing the assessor‘s ability to dеtermine the correct value for the current tax year. Id.
{¶ 16} In considering all of Fogg‘s contentions, the dispositive principle is that Fogg, as the appellant before the BTA, bore the burdеn of proving its proposed value. Colonial Village, Ltd. v. Washington Cty. Bd. of Revision, 123 Ohio St.3d 268, 2009-Ohio-4975, 915 N.E.2d 1196, ¶ 23. Fogg apparently believes that it could satisfy its burden of proof at the BTA by relying on evidence to the effect
{¶ 17} Having found that Fogg failed to satisfy its burden of proof, the BTA properly adopted the county‘s vаluation of the property. Colonial Village, 123 Ohio St.3d 268, 2009-Ohio-4975, 915 N.E.2d 1196, ¶ 23, 31. We therefore affirm the decision of the BTA.
Decision affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
Wayne E. Petkovic, for appellant.
Brindza, McIntyre & Seed, L.L.P., Robert A. Brindza, Daniel McIntyre, David H. Seed, David A. Rose, and Jennifer A. Hoehnen, for appellee Akron City School District Board оf Education.