IN THE SUPREME COURT OF OHIO
CINCINNATI SCHOOL DISTRICT BOARD OF EDUCATION Case No. 09-1405 Appellant, On Appeal from the Ohio Board of Tax Appeals vs.
HAMILTON COUNTY BOARD OF REVISION, et. al. Board of Tax Appeals Case No. 2007-A-1196 Appellees,
MERIT BRIEF OF APPELLEES CRAIG FENNEL AND FENCO DEVELOPMENT CO.
David C. DiMuzio (0034428) Thomas J. Scheve (0011256) Jennifer B. Antaki (0072165) Assistant Prosecuting Attorney David C. DiMuzio, Inc. IIamilton County Prosecutor's Office 19900 Kroger Building 230 East Ninth Street, Suite 400 1014 Vine Street Cincinnati, Ohio 45202 Cincinnati, Ohio 45202 Phone (513) 946-3049 Phone (513) 621-2888 Facsimile (513) 946-3018 Facsimile (513) 345-4449
COUNSEL FOR APPELLANT COUNSEL FOR APPELLEES CINCINNATI SCHOOL DISTRICT HAMILTON COUNTY BOARD OF BOARD OF EDUCATION REVISION AND COUNTY AUDITOR
Glenn F. Alban (0059482) Rex H. Elliott (0054054) Alban & Alban, LLP Charles H. Cooper (0037295) 7100 N. High Street, Suite 102 John C. Camillus (0077435 Worthington, Ohio 43085 Cooper & Elliott, LLC Pbone (614) 340-4044 2175 Riverside Drive Facsimile (614) 340-4042 Colainbus, Ohio 43221 Phone (614) 481-6000 Facsimile (614) 481-6001
COUNSEL FOR APPELLEES FENCO DEVELOPMENT CO. AND ^ CRAIG FENNEL tJl. F;CiR 0 V 01 Ci1. I(;:: C_;(ll1fI`i TABLE OF CONTENTS Paee
TABLE OF AUTHORITIES ...... ii-iii
STA"I'EMENT OF FACTS ...... 1-3
LAW AND ARGUMENT ...... 4-15
Proposition of Law No. 1: Because Appellant Did Not Meet its Burden of Proof Below, This Court Must Affirm the Decision of the Board of Tax Appeals ...... 3-5
Proposition of Law No. 2: Despite the Statutory Lariguage, When There is no Other Recent Evidence of Value from a Non-Auction Sale, a Recent Auction Sale Can be Considered for Purposes of Deterniining the True Value of a Property in Revaluation Hearing When There is Sufficient Indicia That the Sale was Arms-Length, and the Value Established by the Auction Sale is Supported by Other Evidence ...... 5-11
Proposition of Law No. 3: This Court Does Not Have Jurisdiction to Determine if Craig Fennel Committed the Unauthorized Practice of Law ...... 11-12
Proposition of Law No. 4: A Corporate Officer Does Not Commit the Unauthorized Practice of Law by Pai-ticipating as a Witness in a Hearing in Front of tlie Board of Tax Appeals Regarding the Revaluation of Corporate Property When the Corporation is not Represented by Counsel in the Proceeding ...... 12-15
C O N C L I J S I O N 15
CERTIFICATE OF SERVICE ...... 16
APPENDIX Anua. No.
Transcript of Proceedings in the Board of Tax Appeals ...... A-1
R. C. 5717.04 ...... A-14 TABLE OF AUTHORITIES
CASES page
AEI Net Lease Income & Growth Fund v. Erie County Bd. of Revision (2008), 119 Ohio St. 3d 563, 2008 Ohio 5203; 895 N.E.2d 830 ...... 8
Banasik vs. Franklin County Board ofRevision (Feb. 7, 1992), BTA No. 90-C- 1107, unreported...... 9
Bd ofRevision of Cuyahoga County v. Fodor (1968), 15 Ohio St.2d 52, 239 N.E.2d 25 ...... 5
Bedford Bd, of Educ. v. Cuyahoga County Bd of Revision (Jan. 3, 1997), B'1'A No. 1995-T-275, unreported ...... 6
Beljon v. Portage County Bd ofRevision (Aug. 1, 1997), BTA No. 1996-T-996, unreported ...... 7
Berea C'ity School Dist. Bd of Educ. v. Cuyahoga County Bd. of Revision, 106 Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782 ...... 8
Brennan v. Board of Tax Appeals (1963) 175 Ohio St. 263, 193 N.E.2d 700 5
Cardinal Federal S. & L. Assn, v. Cuyahoga CountyBd. ofRevision (1975), 44 Ohio St.2d 13, 336 N.E.2d 433 ...... 11
Cleveland Bd of Educ, v. Cuyahoga County Bd. of Revision (Jan. 15, 1999), BTA No. 7 1997-J-1 385, unreported ......
Columbus Bd. ofFduc_ v. Fountain Square Assocs. (1984), 9 Ohio St. 3d 218, 459 N.E.2d 894 ...... 7
Conalco v. Monroe County Bd. of Revision (1977), 50 Ohio St.2d 129, 363 N.E.2d 722 ...... 6
Concept Investment Group, LLC v Franklin Coamry Bd. ofRevision (Nov. 17, 2006), BTA No. 2005-T-1267, unreported...... 6
Coplay-Fairlawn City School Dist. Bd of Educ. v. Summit County Bd. of Revision (Dec. 21, 2007), BTA No. 2006-A- 1074, unreported 11
CumminsPropertyServs., L.L.C. v. Franklin County Bd. of Revision, 117 Ohio St.3d 516, 2008 Ohio 1473, 885 N.E.2d 222 8
ii Dayton Supply & Tool Company, Inc., v. Montgomery County Board ofRevisions, 111 Ohio St.3d 367, 2006 -Ohio- 5852, 856 N.E.2d 926... 8
Fair Store Co. v. Board of Revision of Hamilton County (1945), 145 Ohio St. 231, 61 N.E.2d 209 ...... 5
Mentor Exernpted Village Bd ofEduc. v. Lake County Bd. ofRevision (1988), 37 Ohio St.3d 318, 526 N.E.2d 64 ...... 4
Mills v. Lucas County Bd. ofRevision (Apr. 29, 1994), BTA No. 1992-Z-553, unreported ...... 7
Murray Hill Properties LP v. Franklin County Bd of Revision (Sept. 19, 1997), BTA No. 1996-A-1005, unreported ...... 7
Nicholson Cleveland Terminal Co. v. Cuyahoga County Bd ofRevision (July 12, 1985), BTA Nos. 1991-G-373, unreported ...... 9
Rhodes v. Hamilton County Bd. ofRevision, 117 Ohio St.3d 532, 2008 Ohio 1595, 885 N.E.2d 236 ...... 8
R.R.Z. Associates v. Cuyahoga County Bd. ofRevision (1988), 38 Ohio St.3d 198, 527 N.E.2d 874 ...... 5
Sinith v. Pagett (1987), 32 Ohio St.3d 244, 513 N.E.2d 278 ...... 13
State ex rel. Park Investsnent Co. v. Bd. of Iax Appeals (1964), 175 Ohio St. 410, 195 N.F,.2d 908 ...... 6
Tele-Media Co. v. Lindley (1982), 70 Ohio St.2d 284, 436 N.E.2d 1362...... 3
Walters v. Knox County Bd. ofRevision (1988), 47 Ohio St.3d 23, 546 N.E.2d 932.... 8
STATUTES
R. C. 5713.04...... 6
R.C. 5715.19 ...... 13
R. C. 5717.04 ...... 11
i STATEMENT OF FACTS
In February of 2006, Fenco Development Company ("Fenco Development") purchased a dilapidated and blighted apartment building located at 144 Glencoe Place,
Cincinnati, Ohio ("the property").' (Appellant's Appx. 2.) The proper-ty was purchased by the
President of Fenco Development, Craig Fennel, at a cornpetitive nationally advertised public
auction sale held by the U.S. Deparlinent of Housing and Urban Development ("HUD").
(Appellee's Appx. 11, 13, 28.) The unrebutted testimony and evidence submitted and considered
by the Ohio Board of Revision and Tax Appeals shows the following. (Appellant's Appx. 6, 7.)
The property was purchased at a busy IiUD public auction (the "HUD sale" or
"HUD auction") wherein several otlier persons actively bid on the property. (Appellee's Appx.
11, 13, 28.) The record shows that all the bidders that attended the HUD sale and bid on the
property were independent, acting in their own self interest, not affiliated with the seller or each
other, and not subject to any pressure or duress from the other parties. (Id.) Craig Fennel spoke
with some of the bidders at the HUD sale and several of them informed him that they had
traveled from out-of-state to attend the auction and bid on the property that he, acting on belialf
of Fenco Development, ultimately purchased. (Id.) After a ten to fifteen minute bidding war,
Craig Fennel was able to successfully purchase the property for Fenco Development. (Id. 28.)
The property was purchased at the sale for its fair market value of $135,000.00. (Appellant's
Appx. 6.)
Upon fmding that the IHamilton County Auditor had placed a $479,600.00
valuation on the property that his company purchased, Craig Fennel, acting for Fenco
Development, filed a complaint with the Hamilton County Board of Revision seeking a reduction
in the property's valuation. (Appellant's Appx. 5.) The HUD sale was the most recent arm's-
' The parcel nuinber on record at the Hainilton County Auditor's Office for the propeity is 088-0009-0010-00.
-1- length sale at the time Fenco Development sought a reduction in the property's valuation.
(Appellant's Appx. 7, 11.)
After a hearing on the merits, the Ilamilton County Board of Revision reduced the
true value of the property to $135,000.00. (See Appellant's Supp. 1, 7-8.) The Hamilton County
Board of Revision agreed with the county appraiser that the current value of the property was too high and set the value of the property at the price established by the HUD sale. (See Appellant's
Appx. 7.)
The Board of Revision's decision to reduce the true value of the property was
supported by other evidence provided during the hearing. (Appellant's Appx. 6-9, 11.) No
evidence was submitted on behalf of Appellant in the Board of Revision hearing. (Appellant's
Appx. 6.) Appellant appealed the Board of Revision's decision to the Board of Tax Appeals.
In the Appellant's appeal to the Board of Tax Appeals, Craig Fennel appeared on
behalf of Appellee, Fenco Development, to be a witness and explain the facts surrounding the
purchase of the property, current condition of the property, and his view as to the correct
valuation ofthe proper-ty. (Appellee's Appx. 11-28.) His assessment of the property included his
providing evidence supporting the basis for his conclusion regarding the property's true fair
market value. Id. He did not make legal arguments to the Board of Tax Appeals. (Appellee's
Appx., compare 11-28 with 32-34.). Craig Femiel simply answered the questions he was asked
by either the Board of Tax Appeals or Appellant's Counsel, and he gave his opinion as to the
valuation of the property his company owned, which is permitted by Oliio Law. (Id ) After
questioning Craig Fetmel in the hearing before the Ohio Board of Tax Appeals, Appellant
presented no other evidence or witnesses in support of its position that the Board of Revision had
improperly reduced the value of the property. (Appellant's Appx. 7) The Board of Tax Appeals considered all of the evidence in the record and f'ound
that: (1) the settlement statement and conveyance fee statement were the best evidence in the
record regarding the value of the property for the tax year 2006; (2) the HUD anction was a nationally advertised public sale that attracted many bidders, several of which had traveled to the sale from out-of-state; (3) there were several bidders who bid on the property at the sale, and the
bidding war went on for ten to fifteen minutes before Fenco Development successfully won the
auction; (4) the photos of the property in the record supported the $135,000.00 valuation of the property; (5) all of the testimony and photos depicted a deplorable and blighted property, which
supported reducing the property's value; (6) the property had been ransacked and stripped of all
the kitchen fixtures, bathroom fixtures, and copper piping, which reduced the property's value;
(6) there was other significant damage, structural and otherwise, to the property that reduced its
value; and (7) the "auditor's 2008 triennial valuation update" showing that the property was
worth $136,350.00 supported the valuation found by the Board of Revision. (Appellant's Appx.
7-9.) There was also evidence presented that the property was infested with rnold. (Appellee's
Appx. 24.) On the basis of the abovementioned competent and credible evidence, the Board of
Tax Appeals upheld the Board of Revision's valuation reduction finding. (Appellant's Appx. 11.)
LANV AND ARGUMENT
Proposition of Law No. 1:
Because Appellant Did Not Meet its Burden of Proof Below, This Court Must Affirm the Decision of the Board of Tax Appeals.
It is well established that when an arm's-length sale occurs, there is a presuinption that the sale price reflects the true value of the property in question; this presumption is only rebutted when the appellant presents "anotlzer indicator [that] is a more accurate representative of that value." Tele-Media Co. v. Lindley (1982), 70 Ohio St.2d 284. It is the burden of the party
-3- who claims that a sale was not conducted at arm's length to rebut the presumption accorded to the sale. Coplay-Fairlaivn City School District Bd. of L.'ducation v. Sunanait County Bd. of
Revision (Dec. 21, 2007), BTA No. 2006-A-1074, unreported; see also, Mentor Exempted
Village Bd. ofF,ducation v. Lake County Bd of Revision (1988), 37 Ohio St.3d 318, 319. Thus, after the Board of Tax Appeals and Board of Revision found that the sale in this case was an arm's-length transaction, it was Appellant's duty to come forward with sufficient evidence supporting its contention that the contested transaction in the instant case was not ann's-lenQth, and that the sale is not sufficient evidence of tnic value. Id. Because Appellant never provided evidence supporting its contention that the transaction in the instant case was not ann's-length and not evidence of true value, Appellant did not meet its burden of proof in the Board of Tax
Appeals; therefore, the Board's decision must be affirmed. (Appellant's Appx. 6, 7) (stating
Appellant never provided any evidence to support its position).
This Court could affirm the Board of Tax Appeals' decision without any consideration of the merits of this case. It has been unanimously recognized at all stages of this revah.iation proceeding that Appellant has never presented any evidence disputing the value of the property. (Appellant's Appx. 6, 7.) Conversely, Appellee has submitted dociunents from the
HUD sale in 2006 supporting the reduced value of the property. (Appellant's Appx, 6-9.)
Appellee has submitted photos of the property and provided testimony concerning the deplorable
and dilapidated condition of the property. (Id.) Appellee has shown that the property had been ransacked and stripped of it fixtures and copper piping, as well as, that there was other damage to
the property when it was purchased. (Id.); see p. 3, supra. The Auditor stated that tlie value of
the property on record at the Hamilton County Auditor's Office was too high and provided a
valuation that supported the valuation found by the Board of Tax Appeals. (See Appellant's Appx 9.) Because Appellant has not carried its burden of proof, this Cowt must affirin the (1968), decision of the Board of Tax Appeals. See Bd ofRevision of Cuyahoga County v. Fodor
15 Ohio St. 2d 52 (affirming the Board of'fax Appeals' decision in one paragraph because its decision was not unlawful or unreasonable).
Proposition of Law No. 2:
When There is no Other Recent Evidence of Value from a Non-Auction Sale, a Recent Auction Sale Can be Considered for Purposes of Determining the True Value of a Property in a Revaluation Ilearing When There is Sufficient Indicia that the Sale was Arm's-Length, and the Value Established by the Auction Sale is Supported by Other Evidence.
In addition to affirming the Board of Tax Appeals' decision because Appellant has failed to cairy its burden of proof, this Court can affirm the decision below on the basis that the
AUD sale was an arm's-length transaction. The transaction is sufficient to establish the reduced
true value found by the Board of Revision and Board of Tax Appeals because it was supported
by other credible evidence and was unrebutted by Appellant. (Appellant's Appx. 6-9.)
The Board of Tax Appeals found that the sale in this case was an arm's-length transaction. (Appellant's Appx. 11.) Unless the Board of Tax Appeals' decision "affirmatively
appears from the record that such decision is unreasonable or unlawful," it must be upheld.
Cardinal Federal S. & L. Assn. v. Cuyahoga County Bd, of'Revision (1975), 44 Ohio St.2d 13,
336 N.E.2d 433; R.R.Z. Associates v. Cuyahoga County Bd of Revision (1988), 38 Ohio St.3d
198, 201, 527 N.E.2d 874. 1'his is because the provisions of the Revised Code providing for
direct appeal from the Board of Tax Appeals was "not intended [,..] to make [the Supreme] court
a'super' board of tax appeals." Fodor, 15 Ohio St. 2d at 53; Fair Store Co. v. Board of Revision
of Hamilton County (1945), 145 Ohio St. 231, 233, 61 N.E.2d 209, 210 ("This court has no
power to substitute its judgment for that of the Board of Tax Appeals"); Brennan v. Board ofTax Appeals (1963) 175 Ohio St. 263, 264, 193 N.E.2d 700, 700 ("lt is not the function of this court to substitute its judgment for that of the Board of 1'ax Appeals").
It lias long been established that the "best evidence of 'true value in money' of real property is an actual, recent sale of the property in an arm's-length transaction." Conalco v. Bd.
of Revision (1977), 50 Ohio St.2d 129, at the syllabus; State ex rel. ParkInvesnnent Co. v. Bd of
'I'ax Appeals (1964), 175 Ohio St. 410. "[W]hen the property has been the subject of a recent
ar-m's-length sale between a willing seller and a willing buyer, the sale price of the property shall
be 'the true value for taxation purposes."' Berea City School Dist. Bd of Educ. v. Cuyahoga
County Bd. of Revision, 106 Ohio St.3d 269, 2005-Ohio-4979, at ¶ 13. Here, although some of
the clements of the subject sale transaction could be considered atypical, there has been no
evidence presented to indicate that the sale itself was anything but an ordinary, arm's-length
transaction.
Furtlier, despite the statutory language that could be read to suggest otherwise, it
has been uniformly established that even when a sale occurred out of a bankruptcy, a forced sale,
public auction, or a sheriffs sale, this does not prevent tlie sale from being am-i's-length, nor does
it render the sale useless in determining true or fair market value. See Murray Hill Properties LP
v. Franklin County. Bd ofRevision (Sept. 19, 1997), BTA No. 1996-A-1005, unreported;
Concept Investment Group, LLC v Franklin County. Bd of Revision (Nov. 17, 2006), BTA No.
2005-T-1267, unreported (noting that while R.C. 5713.04 provides that the price for which such
property would sell at auction or forced sale shall not be taken as the criterion of its value, sale
prices of parcels sold at auction can be best evidence of value when if sale is arm's-length);
Bedford Bd, of Fduc. v. Cuyahoga County. Bd. of Revision (Jan. 3, 1997), BTA Nos. 1995-T-
275, unreported (addressing claim that sales price must be rejected because the subject property's developer had fallen into bankruptcy); Cleveland Bd ofEduc. v. Cuyahoga County. Bd. of
Revision (Jan. 15, 1999), BTA No. 1997-J-1 385, unreported, (sale at auction can be considered when determining property's value for tax purposes); see e.g., Belion v. Portage County Bd. of
Revision (Aug. 1, 1997), BT'A No. 1996-T-996, unreported; Mills v. Lucas County Bd. of
Revision (Apr. 29, 1994), BTA No. 1992-Z-553, unreported.
As recognized by the Board of Tax Appeals, the above principle has been applied
to property purchased at a foreclosure sale. Nicholson Cleveland Terminal Co. v. Cuyahoga
County Bd. ofRevision (July 12, 1985), BTA Nos. 1991-G-373, unreported, (foreclosure actions
do not necessarily render a sale less than arm's length); Banas•ik vs. Franklin County Bd of
Revision (Feb. 7, 1992) BTA No. 90-C-1107, unreported; Mairray Hill Properties LP v. Franklin
County Bd. of Revision (Sept. 19, 1997), BTA No. 1996-A-1005, unreported (relying on Mills,
supra, and holding that a purchase from the mortgagor following acquisition at sheriffs sale did
not necessarily render sale other than arm's-length). Even distressed sales that are not arm's
length can be considered strong evidence of value if supported by other competent credible
evidence. See Colasnzbus Bd. ofEduc_ v. Fountain Sguare Assocs. (1984), 9 Ohio St. 3d 218
(evidence of a non-arm's-length sale can be considered in some situations).
Appellant does not seem to dispute that auction sales can be considered both
arm's-length tran.sactions as well as evidence of a property's true value in a revaluation hearing.
Instead, it seems to claim that the HUD sale in the case sub judice was not arn-i's-length.
However, this contention is wrong. The cases cited by Appellant do not establish that auction
sales cannot be considered arni's-length. Moreover, other then general legal stateinents regarding
ar-m's length transactions, the cases cited do not provide any meaningful guidance as to whetller
the HUD sale in this aase was a voluntary sale between a willing buyer and seller, i.e., "without compulsion or duress, in an open market, while the parties were acting in their own self-interest."
Walters v, Knox CountyBd. of Revision (1988), 47 Ohio St.3d 23 (stating elements of arm's-
length transaction).
In AEI Net Lease Income & Growth Fund v. Er•ie Coamty Bd. of Revision (2008),
119 Ohio St. 3d 563, 569, this Court answered the question as to whether "the sale price in a
subsequent sale from the purchaser in the sale-leaseback determines the value of the property."
Rhodes v. Hamilton County Bd. ofRevision, 117 Ohio St.3d 532, 2008 Ohio 1595, P 10, 885
N.E.2d 236, established that the true value of property for taxation purposes "shall be" the price a
willing buyer paid a willing seller in a recent, arm's-length transaction, regardless of otber
appraisal evidence or methods submitted by the appellee or appellant. In Berea City School Dist.
Bd. of Fduc_ v. Cuyahoga County Bd. of Revision, 106 Ohio St.3d 269, 2005 Ohio 4979, 834
N.E.2d 782, this Court deterrnined that when the property has been the subject of a recent arrn's-
length sale between a willing seller and a willing buyer, the sale price of the property shall be
"the true value for taxation purposes." In Cuinmins Property Servs., L.L.C. v. Franklin County
Bd of Revision, 117 Ohio St.3d 516, 2008 Ohio 1473, 885 N.E,2d 222, this Court held the
existence of an encumbrance did not prevent a recent ann's-length sale price from constituting
the true value of the property for tax purposes. These cases are simply not applicable.
In fact, in Walters v. Knox County Bd of Revision (1989), 47 Ohio St.3d 23, 25,
546 N.E.2d 932, the only relevant case cited by Appellant, this Court noted that auction sales
could be considered arm's-length transactions. In line with Walters, The Board of Tax Appeals
correctly determined that the auction sale in this case was an arin's-length transaction that was
voluntary entered into between a self-interested buyer and seller in the open market. (See
Decision of the Ohio Board of Tax Appeals at p. 8); Id. The HUD sale where Appellee purchased the property was arm's-length. It is common knowledge that HUD guarantees loans made by mortgage lending institutions. See generally, http://portal.hud.gov/portal/page/portal/HUD (last visited October 13, 2009) (general website where visitors can access all relevant information about HUD). If a HUD-guaranteed loan is foreclosed upon by a mortgagee lending institution, when the lending institution obtains title to the property, it may transfer such ownership to HUD. Id HUD then owns the property and must clioose from a wide array of choices as to how it will dispose of the property acquired.
IcI HUD may list the property with a local real-estate agent, or it may hold a public auction to
dispose of the property. Id. The auction may require a minimum bid, or it may let the
marketplace detennine the fair market value of the property. The key factor is that HUD almost
always has the discretion to choose how it will dispose of the property. See Id. This makes HIJD
a willing seller. HL1D chose to sell the property through public auction. In fact, HIJD held two
separate auction sales that were several months apart for this property. (See Appellant's Appx. 6-
7.) If it thought the property was going to sell for anything less than market value, then it could
have listed the property with a real estate agent or placed a reserve on the property. It did neither
one of these things and accepted the bid made by Fenco Development. The fact that HUD seeks
to sell properties quickly does not make the sale involuntary, compelled, or the product of duress.
See Banasik vs. Franklin County Board of Revision (Feb. 7, 1992) BTA No. 90-C-1107,
unreported (sale made due to dissolution of organization was not involmitary); Nicholson
Cleveland Terminal Co. v. Cuyahoga County Bd ofRevision (July 12, 1985), BTA Nos. 1991-G-
373 (where property owner was eager, even aiixious to sell the subject property due to
bankruptcy, sale was not involuntary); Murray Hill Properties LP v. Franklin County Bd. of
Revision (Sept. 19, 1997), BTA No. 1996-A-1005 (mortgagee who acquired property through foreclosure and then sold property itself did not make sale involuntary). Likewise, Fenco
Development was a voluntary buyer. It chose to show up at the H1JD auction and was under no compulsion to bid on the property. Accordingly, the )-ND sale satisfies the voluntariness requirement of an arm's-length transaction.
The HUD sale was performed in the open market. This property was on the niarket for several months prior to Fenco Developnient purchasing the property at the HUD sale.
(See Appellee's Appx. p. 32); (Appellant's Appx. 6-7.) Anybody had the opportunity to come in
and buy the property. The sale was nationally advertised, and it attracted buyers from all over the
country. See Banasik vs. Franklin CountyBoardofRevision (Feb. 7, 1992) BTA No. 90-C-1107,
unreported (auction was advertised tlu•ough fliers only and sale was arm's length). Specifically,
there were buyers from Indiana and New York at the IIUD sale. (See Appellee's Appx. p. 13.)
There were multiple bidders on the property, and the bidding lasted for ten to fifteen minutes.
(Id. at13, 28); see Banasik, BTA No. 90-C-1107 at 5, unreported (stating that where two bidders
attended an auction and only three bids were made the sale was nevertheless ann's length sale).
These facts establish that the HUD sale occurred in the open market.
Finally, because the seller and Fenco Developinent were in no way connected, did
not know each other prior to the HtJD sale, and Fenco Development purchased this property as a
speculative investment for its own purpose, the self-interest element of an arm's-length
transaction is satisfied. ld. The above facts establish that an arm's-length transaction occurred at
the HUD sale.
Further, the valuation establislzed by the IIUD sale was supported by other
competent and credible evidence. (See Appellant's Appx. Decision of the Ohio Board of Tax
Appeals 7-11.); (Appellee's Appx, at 24); see also, page 3, supra). On the basis of this evidence, the Board of Tax Appeals upheld the Board of Revision's correct valuation reduction finding.
This Court should do the sanie.
The Board of Tax Appeal's decision must be upheld unless "it affirmatively
appears fi'om the record that such decision is unreasonable or unlawful." Cardinal Federal S. &
L. Assn, 44 Ohio St.2d 13. It is the burden of a party who clahns that a sale is other than arm's-
length to rebut the presurnption ordinarily accorded the sale. Coplay-Fairlawn, BTA No. 2006-
A-1074, unreported. Because all the elements of an arm's-length transaction are present in this
HUD sale transaction, and because Appellant has failed to rebut the presumption provided to
Appellee once it has been established that an arm's-length sale occurred, the Board of Tax
Appeals' decision must be aftirmed.
Proposition of Law No. 3:
This Court Does Not Have Jurisdiction to Deteimine if Craig Fennel Committed the Unauthorized Practice of Law.
The issue of whether Craig Fennel engaged in the unauthorized practice of law is
not properly before this Court. R.C. 5717.04 is the exclusive provision that gives the Supreme
Court power to hear direct appeals form the Board of'1 ax Appeals regarding land revaluation
proceedings. R.C. 5717.04 only permits direct appeals to obtain "a reversal, vaeation, or
modification of a decision of the board of tax appeals." The issue regarding Craig Fennel
engaging in the unauthorized practice of law had not been addressed or raised at any prior stage
of this dispute. "fhis Court cannot reverse, vacate, or modify a decision on an issue pursuant to
R.C. 5717.07 that has never been raised or decided in the proceedings below. What Appellant is
really asking this Court to do is to rule on this issue in the first instance, which is not permitted.
See R.C. 5717.04 T'he Court's lack of jurisdiction in the in this case is consistent with Dayton
Supply & Tool Company, Inc., v. Montgomery County Bd of Revisions, 111 Ohio St.3d 367, 368,
2006 -Ohio- 5852, 856 N.E.2d 926. In Dayton Supply, a corporation appealed the Board of
Revision's land valuation deterniination to the Board of Tax Appeals. The Board of Tax Appeals remanded the case to the Board of Revision with instructions to dismiss the complaint because it
found that the corporate officer engaged in the unauthorized practice of law by preparing and
filing the complaint for revaluation with the Board of Revision. The corporation appealed the
decision to the Supreme Court, and it reversed. It was only because the issue o f unauthorized
practice of law was raised in the Board of Tax Appeals that the Supreme Court could liear this
issue through the appellate ineclranisms provided by R.C. 5717.04.
Accordingly, this straw argument asser-ted by Appellant cannot be used to
invalidate the judgment issued by the Board of Tax Appeals. If Appellant wishes to prosecute
Craig Pemiel for allegedly engaging in the unauthorized practice of law he must use the proper
channels of the justice system or file a complaint with the Ohio Disciplinary Council. Regardless
of how Appellant ultimately decides to handle its belief that Craig Fennel engaged in the
unauthorized practice of law, it is clear that a direct appeal through R.C 5717.04 is not the proper
procedure to have this issue decided. Therefore, Appellant's "Proposition of Law No. 2" must be
disniissed for lack of jurisdiction.
Proposition of Law No. 4:
A Corporate Officer Does Not Commit the Unauthorized Practice of Law by Participating as a Witness in a Hearing in Front of the Board of Tax Appeals Regarding the Revaluation of Corporate Property When the Corporation is not Represented by Counsel in the Proceeding.
Even should the Court choose to consider the argurnent that Craig Fennel engaged
in the unauthorized practice of law, this position must be rejected. It is undisputed that,
-12- "[p]ursuant to R.C. 5715.19, a corporate officer does not engage in the unauthorized practice of law by preparing and filing a complaint witli a board of revision, and by presenting the claimed value of the property before the board of revision on behalf of his or her corporation, as long as the officer does not make legal arguments, examine witnesses, or undertake any other tasks that can be performed only by an attorney." Dayton Suplyly & Tool Company, Inc., v. Montgornery
County Bd of'Revis•ions, 111 Ohio St.3d 367, 368, 2006 -Ohio- 5852, 856 N.E.2d 926. Further,
"Ohio law lias long held that an owner of eitlier real or personal property is, by virtue of such ownership, coinpetent to testify as to the inarlcet value of the property." Smith v. Pagett (1987),
32 Ohio St.3d 244, 347. These two cases read together should result in this Court finding that
Craig Fennel, President and sole shareholder of Fenco Development, did not engage in the unauthorized practice of law in this case.
Craig Fennel filed the complaint for revaluation under R.C. 5713.19 on behalf of
Fenco Development as pernsitted by Dayton Supply, 111 Ohio St.3d 367. (See Decision of the
Ohio Board of Tax Appeals at p. 3). He properly testified to the facts surrounding the property's purchasing in front of the Board of Revision. Id. After Appellant appealed the decision to the
Board of Tax Appeals, Craig Fennel showed up to the appeal as a witness. (See Transcript of proceedings in the Board of Tax Appeals at 11.) His staternents to the Board of 1'ax Appeals
were factual only. He did not inake legal argiunents to the Board of Tax Appeals. He did not make any objections. See generally Id. He did not give au opening staternent. Id. at 6-10. He did
not examine any witnesses. See generally Id. He did not cross-exainine any witnesses. Id. He did
not make any legal arguments regarding why specific evidence was admissible or inadmissible.
Id. at pp.12, 18-19. Craig Fennel did make some closing remarks; however, he only did so
because the hearing examiner for the Board of Tax Appeals expressly asked if he would do so. Id. at p. 32. His closing statement was simply a reiteration of the facts that he already provided to
the Board of Tax Appeals. Id. at pp. 11-28 with pp. 32-34. He did not make any legal arguments
in his "closing." Id. at pp. 32-34.
The law as announced in Dayton Supply, 111 Ohio St.3d 367 applies squarely to the facts of this case. Simply because the corporate layperson rnade some closing remarks at the
request of the attorney-exaininer presiding over the appeal does not change the analysis. Mr.
Fennel's response to the attorney-examiner was not legal argument; it was simply providing facts
at the attorney-examiner's request. Where the attorney-exaininer expressly instructs the
layperson to participate in the proceedings in a certain manner, that participation cannot
constitute the miauthorized practice of law. To hold otheivvise would be to pennit attorney-
examiners to entrap naive parties into un-,vittingly engaging in the unauthorized practice of law.
At all times in this action, Craig Fennel was candid with the Board of Tax
Appeals about his status as a non-attonley and earnest about the capacity in which he was
appearing. (See Transcript of proceedings in the Board of Tax Appeals at p. 34) (stating that
"prior to going on the record" they discussed that Fenco Development owned the property and
that he was an officer of Fenco Development). Appellant was aware of Craig Fennel's status as a
non-attoniey and that his appearance in this action was in a representative capacity only. Id. At
no prior time has Appellant raised concerns about Craig Fennel's participation in this action. This
Court has already held that Craig Fennel's exact actions, if performed in front of the Board of
Revision, is not the unauthorized practice of law. See Dayton Supply, sa.rpYa. The reasonnig of
Dayton Supply should apply to the case sub judlce.
The fact that the corporate party in Dayton Supply had counsel at the Board of
7'ax Appeals level is of no consequence. In Dayton Supply, the issue olunauthorized practice of law was raised in front of the Board of Tax Appeals prior to any participation by the party in the appellate proceedings. It was because the corporate officer was charged with participating in the unauthorized practice of law in front of the Board of Revision that he had obtained counsel prior to the proceedings in front of the Board of Tax Appeals. That timeline of events is the same in this case: Craig Fennel was accused by Appellant of engaging in the unauthorized practice of law in front of the Board of Tax Appeals; thus, he obtained counsel to represent him at the next level of the proceedings. Appellant's arguments are therefore unavailing, and this Court sliould find that Craig Femrel did not engage in the unauthorized practice of law by participating as a witness
at the Board of Tax Appeals hearing.
CONCLUSION
For the foregoing reasons, the decisions of the Board of Tax Appeals and Board of
Revision should be affirmed
RcK H. Elliott (0054054) Charles H. Cooper, Jr. (0037295) Jolm C. Camillus (0077435) Cooper & Elliott, LLC 2175 Riverside Drive Columbus, Ohio 43221 (614) 481-6000 (614) 481-6001 (Facsimile)
Glenn F. Alban (0059482) Alban & Alban, LLP 7100 N. High Street, Suite 102 Worthington, Ohio 43085 Telephone: (614) 340-4044 Facsimile: (614) 340-4042 Attorneys for Appellees Fenco Development and Craig Fennel
-15- CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Merit Brief of Appellee Fenco Development
Co. and Craig Fennel, was sent via ordinary U.S. Mail this day of October, 2009 upon the following counsel of record:
David C. DiMuzio, Esq. Jennifer B. Antaki, Esq. 19900 Kroger Building 1014 Vine Street Cincinnati, Ohio 45202
Attonieys for Appellant Cincinnati School District Board of Education
Thomas J. Scheve, Esq. Assistant Prosecuting Attorney Hamilton County Prosecutor's Office 230 East Ninth Street, Suite 400 Cincinnati, Ohio 45202
Attorney for Appellees Hamilton County Board of Revision and Hamilton County Auditor APPENDIX MCGINNIS & ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451
Page 1
BEFORE THE BOARD OF TAX APPEALS
STATE OF OHIO
Cincinnati School District)
Board of Education,
Appellant,
Case No. 2007-A-1196
Hamilton County Board of
Revision, et al.,
Appellees.
State Office Tower
30 East Broad Street
24th Floor
Columbus, Ohio 43215
Wednesday, March 4, 2009
Met, pursuant to assignment,
at 9:15 o'clock a.m.
BEFORE:
Carrie C. Young, Attorney-Examiner
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^^! MCGINNIS & ASSOCIATES,INC. 614.431.1344 COLUIvIBUS, 01410 800.498-2451 2 (Pages 2 to 5) Page 2 Page 4 1 APPEARANCES: 1 PROCEEDINGS 2 2 --- 3 ON BEHALF OF Tt E arrELLANr: 3 Wednesday, March 4, 2009 4 David C. DiMuzio, Esq. 4 Morning Session 5 David C. DiMuzio, lnc. 5 6 19o0ttrogerBuading 6 '1'hereupon, Appellee's Exhibit Nos. 1 7 1014 vinesaeet 7 through 4 were marked for purposes of 8 Cincinnati, Ohio 45202 8 identification. 9 (5)3) 621-2888 9 - - - 10 Fax: (513) 345-4440 10 TI-lE EXAMINER: 'Phis is a hearing befol-e 11 E-mait: legalhiai@yahoocom 11 the Board of Tax Appeals, State of Ohio, relative i 2 12 to all appeal styled Cincinnati School District, 13 ON mi[-IALF OF FENCO DEVELOPMENT COMPANY, APPELLEE: 13 Board of Education, Appellant, versus Hamilton 14 Cra;gaermek, Pro se 14 County Board of Revision, et at, Appellees, Board 15 505 Vincent Court 15 of Tax Appeals Case No. 2007-A-1196. 16 Mddletowu, Okiio 45042 16 This case is being heard in Hearing Room 17 (513) 422-8161 17 C in the Offices of the Board of Tax Appeals, on i s --- 18 the 24th Floor of the State Office Tower, 30 East 19 19 Broad Street, Columbus, Ohio, on March 4th, 2009, 20 20 at 9:30 a.m., pursuant to assignment before Carrie 21 21 C. Young, Attorney-Examiner for the Board of Tax 72 22 Appeals. 23 23 The notice of appeal was filed with the 24 24 Board of Tax Appeals on October 19th, 2007. This 25 25 appeal is from a decision of the County Board of
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1 T N D E X 1 Revision mailed to the Appellant on October 9, 2 --- 2 2007, wherein said County Board of Revision 3 WITNESS PAGE 3 determined the taxable value of the subject real 4 Craig Fennel 4 property for tax year 2006. 5 Direct testimony 11 5 The subject real property is located in 6 Cross-examination by Mr. DiMnzio 16 6 the 001-Cincinnati Corporation Taxing District, 7 Further cross-examination by Mr. DiMuzio 28 7 I-Iamilton County, Ohio, and appears on the 8 --- 8 Auditor's records as Parcel No. 088-0009-0010. 9 F.,XIlI13ITS MARKED RECEIVED 9 The true value placed on the subject real 10 Appelle&s Exhibit No, 1- 4 27 10 property by the County Auditor is $479,600. The 11 Photographs 11 true value placed thereon by the County Board of 12 Appellee's Exhibit No. 2 - 4 27 12 Revision is $135,000, whereas the Appellant claims 13 2008 Assessment 13 the correct taxable value -- I'm sony -- taxable 14 Appellee's Exhibit No. 3- 4 27 14 and true value is that of which the Auditor 15 Sale on subject that never closed 15 previously detennined. 16 Appellee's Exhibit No. 4 - 4 27 16 At this time will the Appellant's 17 Closing Statement 17 representative please enter an appeararlce? ,1 g --- 18 MR. DI MUZIO: Yes. My name is Dave 19 19 DiMuzio. I am with the funt of David C. DiMuzio, 20 20 Inc., 1900 Kroger Building, 1014 Vine Street, 21 21 Cincinnati, Ohio 45202, telephone number is 22 22 (513) 621-2888, here on behalf of the Cincinnati 23 23 SchoolDistrict. 24 24 TIdE EXAMINER: Thank you, Mr. DiMuzio. 25 1 25 At this tinle will the County Appellee's
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Page 6 Page 8 1 representative please errter an appearance? 1 done on the propert.y. And in her opinion, the 2 (No response.) 2 documentation that Mr. Pennel had provided did 3 TIIE EXAMINER: Let the record reflect 3 not -- was insufficient to support a value of 4 that there is no response to my question, that it 4 $135,000. That appears on Page 4 -- top of Page 4 5 is now approximately 9:15 a.m. 5 of the transcript. 6 The record should also reflect that the 6 She went on to say that the property 7 Board was notified by letter dated December 31st, 7 condition was deplorable, but that there was no 8 2008, that on behalf of the Auditor, Thotnas J. 8 information or appraisal to give a value as of the 9 Scheve was waiving his appearance at the hearing 9 lean date. She went on to say she felt the 10 scheduled for today. 10 cuirent value was too high, but didn't give her 11 And finally, will the Appellee property 11 appraisal; apparently, it was off about $13,000 a 12 owner's representative please enter an appearance? 12 unit. 13 MR. FENNEL: I am Craig Fennel, 505 13 There was no other evidence provided.. 14 Vincent Court, Middletown, Ohio 45042, 14 There was a discussion by me, which I assume is 1.5 (513) 422-8161. 15 not necessarily the best evidence, but there was 16 THE E:XAMIN.ER: Thank you. 16 some discussion on Page 6 that there had been a 17 Mr. DiMuzio, do you have an opening 17 hearing the prior week, and that there was 1.8 statement today? 18 apparently a $7,500 per unit sale. 19 MR. DI MUZIO: Yes. Thank yon. 19 But the point I was trying to make at the 20 This does involve the valuation of a 20 hearing, there was absolutely no evidence to 21 property in Haniilton County as of Janusay I st of 21 suppott anything close to the -- I think it was 22 2006, about three years ago. 22 3,600 or so per-unit value that would be applied 23 The -- As was noted earlier, the County 23 if we applied the foreclosure sale. 24 had on a particular value. The taxpayer 24 ht the absence of any evidence, any 25 complained to the Board of Revision, put forth a 25 support at all in the marketplace, just this Page 7 Page 9
1 foreclosure sale at approxitnately $135,000, his forced sale, we didn't feel that was suffrcient. 2 evidence of value. I understand that Mr. Femael will put on 3 A hearing was held. A transcript has some additional evidence today; maybe that will 4 been provided to the Board as part of the offrcial give us some clues. But it is clear in the 5 record, and I will be referring to it in my evidence that was presented that the taxpayer had 6 opening. the burden, simply came forward with that forced 7 We don't really have any additional sale, had no other evidence, and the Board just 8 evidence, but obviously when we appealed the speculated, basically -- well, they basically said 9 decision, we felt that the evidence supported a they adopted a foreclosure sale as the best 10 different -- a different ruling than what came evidence of value. :It is not a coincidence. And 11 out. wejust feel that approach violates.Ohio law. 12 Obviously, we don't feel that a Clearly it was not a voluntary sale. It 13 foreclosure sale is the proper basis -- or, any was not an arm's-length sale, therefore, it was 14 forced sale is a propar basis for valuation. 1 not the best evidence of value, and was simply 15 specifically asked Mr. Fennel at the hearing, on speculative, arbitrary and capricious. 16 Page 3, if the foreclosure -- if it was a So in the absence of any market evidence 17 foreclosure sale. I-Ie replied it was a foreclosure or any evidence to support the $135,000 valuation, 18 sale. .. we would ask the Board to do one of two things; 19 I asked^him if he had an appraisal done either revert back to the taxpayer -- I'm sony, 20 to see what the value of similar properties were, the tax bill value in the absence of any evidence 21 and he said no, he had not. supporting the current valuation from the Board of 22 The Auditor's representative, who is a Revision, or adopt the $7,500. At least there is 23 certi6ed appraiser, Ms. McFeeters, also testified some evidence of that. - 24 at the hearing. She also confrmed that it was a There is some discussion of that issue at 25 foreclosure sale, that there had been no appraisal the Board of Revision on a per-unit basis. I know
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1 the Board likes t.o find some evidence in the There has been no foundation as to how he 2 record to support whatever decision it makes, and knows this, even if he does know it. I presume he 3 that was the only evidence of a market nature. got it from a third party that is not here to be 4 That is all we have, examined. This is an unsigned closing statement; 5 THE E3CAhGNER: Thank you. may or may not have closed. 6 Mr. Fennel, would you raise your right He is indicating it did not close, and 7 hand please? now he is going to tell us why it didn't close. I 8 (Wltness placed under oath.) just think we are getting way beyond any sort of 9 THE EXAMINER: Okay. You may proceed admissible evidence. 10 witl your presentation. THE )3XAMINER: The Board will certainly 11 --- note your obj ection for the record; however, you 12 may continue. 13 M. FENNEL: I have no knowledge of why 14 it closed or even if it didn't close -- or, 15 whether it did or didn't close. But obviously, it 16 was back on the market by H.UID within two or three 17 months. I think this was in November or December, 18 and I purchased it, I believe, in January -- the 19 next January. 20 So it was -- and the rules of engagement 21 in the HUD auction is that if you put $50,000 down 22 as the down payment and unable to complete the 23 sale, you forfeit that $50,000. And I have no 24 idea why they did or didn't, other than they 25 weren't obviously unable or unwilling. Page 11 Page 13 1 CRAIG FENNEL 1 The -- Anyway, what I don't know is -- 2 of lawful age, being first duly placed under oath, 2 and I havo done no research with regards to 3 as prescribed by law, was examined and testifred 3 whether I-iUD made any attempt to sell it or had any 4 as follows: 4 other means of selling property. 5 DIRECT TESTIMONY 5 1 know that there are homes and 6 THE WITNESS: Anyway, Pm the property 6 everything that are I-1'UD properties that are 7 owner and I bought -- I bought it at a HUD sale. 7 listed, basically, by realtors, and other notmal 8 And I am not at all familiar with all HUD 8 sale methods, and whether there was any attempt of 9 proceedings and their mechanisms of selling 9 this and they were unable to sell it and that t 0 properties. But, obviously, they acquired it 10 means. 11 becaase the previous owners had gone into 11 All I know is this particular auction -- 12 deftnquency and they had at least tried to sell it 12 actually, it's in both auctions, but the auction 13 one previous time. 13 that I attended was a nationally advertised 14 And the Exhibit 3 that I presented, is a 14 auction, was attended by bidders, registered 15 record of an attempt to sell it previously. I 15 bidders with their certified checks in hand for -- 16 mean, the result of a previous aucfion where there 16 from New York -- I don't know if it's New York 17 was a sale price of approximately $500,000 two or 17 City or New York State. 18 three months before the previous purchasers had -- 18 1 parsonally talked to a guy from 19 were unable to complete the sale, and so 19 Evansville, Indiana that was there particularly 20 therefore, the property wasn't tumed over. And 20 for this auction, and I know that he had been to 21 the previous bidders had forfeited their -- 21 the previous auction whenever, the two months 22 MR. DI MUZIO: I wouldjust object. I 22 before that. 23 think there is obvious, you know, hearsay problems 23 And I know that there was at least one 24 here as to what these other buyers did or didn't 24 other woman there from the Cincinnati area, and I 25 do. 25 don't -- and there was six or eight bidders -- I
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1 mean, people that signed in. I was a successful for the value, I think, of the 135,000 today. 2 bidder on this national auction; the only tneans Obviously I am hying to keep it in a 3 possible of purchasing this property and -- and to condition that it won't deteriorate until the 4 me, accurately reflects the actual value of this niarket allows it to be rehabbed into something 5 property. more -- into something more attractive, palatable. 6 The photos I provided in the Exhibit 1 So anyway, basically, I feel that 135,000 7 reflects the condition of the property, which has is probably a realistic valuc of the actual 8 already been mentioned, deplorable. It includes condition of this building. 9 complete striping of all eopper throughout all 3? TIIE EXAMiNER: Okay. Is there an 10 units of this apartment building, and destruction Exhibit 4? I just wanted to make sure we 11 of every kitchen and bathroom in the bidding. described all of the exhibits. 12 All the -- not all the windows, but all TIIE WITNESS: Exhibit 4 is the ETtJD 13 the street-side windows are boarded. All the statement for my sale that I completed for the 14 doors have screws througb -- all the doors have 135,000. 15 been kicked in and have been -- and Pve taken TI-IE EXAMINER: Okay. Thank you. 16 three-inch screws to secure them, which means Mr. DiMuzio, do you have any questions 17 every door will have to be replaced. Every for Mr. Fennel? 18 bathroom will have to be replaced and every MR. DI MUZIO: Yes, just a couple. 19 kitchen has to be replaced. 20 And to me, if you wanted to, you know, 20 CROSS-EXADSINATION 21 imagine a number as far as the value of each 21 BY MR. DI MUZIO: 22 individual unit, then right now it is accessed at 22 Q. Mr. Fennel, you testified, according to 23 3,700 a unit, to me it is going to cost at least 23 the transcript at the Board of Revision hearing -- 24 $10,000 -- a negligible number would be $10,000 2 4 this is on the bottom of Page 5-- 25 per unit to get it back up to livable space, which 2 5 MR. PENNEL: Can I-- I was going to Page 15 Page 17 1 according to this H(ID property, you know, the 1 mention, I never got a copy of the transcript. I 2 doe- -- the medium that I am supposed to bring it 2 don't know if I was supposed to, if I was supposed 3 back to low-income housing. 3 to request it, but I haven't had a chance. I 4 And so to me, thts 37- -- the number -- 4 don't know ifit's a big deal to me, but I have no 5 whatever the number is for the current valuation 5 copy of the transcript. 6 per unit, is probably pretty accurate based on the 6 TIiE ERfiMI'NER Okay. You can oertainly 7 nutnber -- the amount of money it would take to get 7 refer to this copy. 8 ihis back to livable space. 8 MR. DI MIJZIO: And I will read it into 9 The other thing, and it has gone through 9 the record as well, just a small portion of it. 10 an additional reassessment by the County and -- 10 BY MR. DI MUZIO: 11 which I will give you a copy and Exhibit 2, where 11 Q. At the bottom of Page 5, Mr. MeClusky, at 12 they basically reviewed the property value of this 12 the Board of Revision -- he asketl you are what the 13 building, and then they reviewed, based on the 13 properties around your property like and you said 14 property value of the similar properties in the 14 the following: "The good property right next to 15 area, and they found no reason to change the 15 me towards Auburn, I think It's low-income 16 assessment significantly. I think it went up to 16 housing, but it's in nice shape and occupied. And 17 100- -- 136,350 instead of 135-. 17 I've talked to the owner of that property and, you 18 So tlteybe actually looked at this 18 know, it seems to be successful and stuff. On the 19 property value. This building is sitt.ing next 19 other side it needs -- I don't know if yoa've 20 to -- is a mueh larger apartment complexaf 20 heard of -- I dan't know actually what its name 21 approximately 100 units, that is in much worse 21 used to be, but there is an old apartment complex 22 condition, and it's basically the whole -- you 22 that they are going to rehab. But it's, right 23 know, that small patt of the neighborhood is 23 now, in worse shape than my building. I am 24 completely blighted, abandoned and is - and I 24 waiting for that to develop so that I know tbat. 25 can't necessarily imagine even selling my property 25 Once that gets going into luxury condos, then I
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1 know what I can do with mine. If that is a vacant property that I purchased, that^am obligated to 2 parking lot because it is gone, that rnight change take this back to low-income houstng.j 3 what I can do with mine. So I am just waiting for So in order for me to, you knowrjive one 4 market direction, I guess." of my pipe dreams, that i have many of, I have to 5 Aoes that sound like an accurate get that restriction removed from the deed that is 6 reflection of what you testified? recorded, you know, with my property. 7 A. You Irnow, it's -- I think it kind of And there is -- I don't know if it's a 8 reflects the pipe dream that I had at that point covenant or whatever, you know, but it would be 9 in time. 13ut it -- what is true is that I need to enforced by I-I[ID. And so that would, you know, 10 know -- you know, in order for ine to lutow what to obviously impact the valuation of -- I mean, of 11 do with my building, I need know what is going to the speculate -- the next speculator that bought 12 happen next to it. this property. 13 And if you know that area at all, I have no -- My intent is to take this to 14 nottung -- nothing has happened to this luxury completion, but it doesn't mean that -- or, you 15 condo area that I-- that I had heard, you know, know, sell it to the next person that is ready to 16 rumors that somebody wanted to do. And so nothing take it to completion. 17 has happened in that direction at all. But I don'f have any idea how we would 18 But the zrason I own this building is decide whether -- you know, what an appraiser 19 with the specolation that something was going to would think about the project that was proposed 20 happen with the property next to it. And so, you for the adjacent property, how they would look 21 know, if you just want me to answer this, this is, back at that and say, "Well, yes, this will raise 22 you know, accurate of what I was thirildng at that the property value of my building." 23 moment in time. To me it was a slums -- the property 24 Q. Okay. The problem that I have -- I don't adjacent to me, and near my building, it was a 25 know wltether the Board has a problem, but the slums, it was a blighted property then, and so Page 19 Page 21 1 problem I have with that is -- and your testimony 1 it's totally speculation to know whether it would 2 that it was basically bought on speculation, is 2 ever be a prosperous neighborhood 3 that it may uot be valid just to compare, look at 3 Q. What was the exhibit number for the 4 the deplorable condition. 4 County of $amilton document you submitted7 5 The value may be in the land. 'The value 5 A. Two, Exhibit 2. 6 nraybe in the fact that, you losow, depending upon 6 Q. As I mentioned earlier, I will just make 7 what gets built around you. It may be sometbing 7 a continuing objection, but I will ask questions 8 where you can put $10,000 a unit into it, as you 8 because it was admitted by the Board, but I don't 9 mentioned. You may end up with something that is 9 think it has any probative value for any number of 10 worth 20- or 25,000 a uuit. 10 reasons, but I did want to ask you, because you 11 That is something we don't know without 11 made some implications that aren't necessarily 12 an appraisal and without a sale. As you mentioned 12 supported on this document. 13 off the record earlier, there have been no sales 13 You don't know whetber this Exhibit 2 -- 14 in that area. From your position, that means 14 the language on here is simply boilerplate and 15 there has been no sale at any bigher number from a 15 appears on all of the notices that went out? 16 position. There has been no sales to support your 16 A. I don't know personally what the process 17 low valuation. 17 is that the Auditors go through, other than 18 But that is why we have appraisers who 18 looking -- and my assumption is -- our general 19 are experis and can understand what something will 19 knowledge would be that when they reassess a 20 be worth once you invest $10,000 a unit, and we 20 property -- and not speaking for Hamilton County, 21 just -- we just don't have anything like that. 21 but my home property -- the valuation changes from 22 And I assume you still haven't commissioned any 22 year to year based on the sales in the 23 sort of appraisal of the property. 23 neighborhood and other properties I own around, 24 A. No, I don't. I guess one point I would 24 but my assomption is that they look at the sales 25 make, again, is that on the deed, that -- of this 25 in that area and if they -- if mine was the only
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sale, then maybe -- but if they can't find any 1 talking to them orjust knowing, you know, seeing reason to, you know, any discrepancy -- 2 information, they were from alI over the country. Q. Well, but again, you -- you can't tell 3 You said this was a nationally advertised from this doeunient, can you, that, No. 1, anybody 4 auction. When you went to the auction, how did even specifically looked at your property? This 5 you come up with a number in your tn'aid? I'm may be a standard inerease from the Board of 6 assuming you said I will not bid over x-asnount. Revision's number that was applied to all of the 7 What did you do prior to the auction properties in the area. 8 maybe to familiarize yourself with the property A. I have no idea how the County -- I mean, 9 and, you know, how much you felt it was worth to I can only assume that the County goes through a 10 you as far as a purchase price. normal process of reviewing property values. 11 TI IE WI'I'NESS: I -- I hadn't thougbt about Q. Okay. And on Exhibit 3, is it your 12 that for a while. Well, I had -- I had -- Pm testimony that it's -- as far as you Imow, it may 13 somewhat of a dreamer and, you know, a speculator, have closed? All you know is It is back on the 14 which is why you buy boarded-up apartment market? 15 complexes which have been vandalized. A. I very much doubt it. I can't say it 16 But I drove by the building. It is a didn't close, but I can't imagine how HUD sold it 17 solid-looking building on the outside. The and then it foreclosed within, you know - What 18 exterior is much more attractive -- it is not are the dates on this thing? 19 preUy, but solidly built, in tact, exterior of Q. Just a couple months went by. 20 the building, whicb is completely different than A. And within the two months, it got 21 the inside ap and relative to the foreclosed on and then back on the inarket and 22 vandalism a d mol^ d stuff. readvertised. 23 But I 1 -^ - it as a solid building Q. Okay. How did you come into possession 24 that probably could be reconstructed no matter of Exhibit 3? 25 whether I knew of this project next door. And I Page 23 Page 25 1 A. I - I'm not absolutely -- I can't 1 have this dream that this project next door would 2 exactly ramembor. All I know is I've had this 2 be this wonderful neighborhood and was willing to, 3 doeum.ent ever since my purchase was going through, 3 you know, gamble. 4 aud I think it was just -- I knew one of the 4 You know, aciually, I was trying to put 5 people that was part of this Many Colors of 5 money into it that would technically - you know, 6 Mt. Aubum and I think that is somehow how I got 6 reap rewards, but not necessarlly gamble a lot of 7 it. 7 inoney. 8 Q. All right. So you knew somebody at the 8 Just looking at fhe outside of the 9 prior perspective purchaser-- 9 buildiag and 37 units, I don't remeiuber what my 10 A. Yes. 10 top nuinber would have been. I had so much money 11 Q. -- from December? 11 available. I was able to pay cash for this 12 And then this looks like this - this 12 building and would not have borrowed money for 13 would also have been, am I correct, a i'oreclosure 13 something like this. But I think, you know, my 14 sale if it had been completed? 14 top nuntber would liave been under 200,000. I'm not 15 A. Riglrt. 15 sure, 16 Q. And it was for a contract sales price of 16 And just -- you know, I don't know if 17 $506,000? 17 it's relevant, if this is all supposed to be as of 18 A. Right, 18 two years ago when we had the tust hearing, but 19 i14R. DI M11ZIO: Okay. That is all I had 19 the project next door has just been floundering 20 in terms of questions. 20 for the last threa years, and notbing has happened 21 THE EXAMIidER: Okay. Mr. Fennel, I just 21 since the -- siucc this reassessment to change the 22 have a couple of questions. 22 value of my property, I mean, as of today. 23 With regard to the sale of the property 23 TI-LE BXAMINER: Okay. And I'm assuming 24 to you at the auction, you indicated that there 24 you would like to offer into evidence Exhibits 1 25 was six or eight other bidders present In 25 through4?
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A-7 MCGINNIS & ASSOCIATSS, INC. 614.431.1344 COLUMBUS, OIIIO 800.498.2451 B (Pages 26 to 29) Page 26 Page 28 1 TIIE WI"I'iQESS: Yes. 1 questioning. 2 THE EXAMINER: And, Mr. DiMuzio, I know 2 MR. Dl M(JZIO: Yeah, just it jogged my 3 you've expressed, at least with a couple of these, 3 memory some of the questions you were asked 4 but if you want to n aybe restate any objections 4 before. 5 that you may have. 5 --- 6 MR. DI IvIUZIO: Yeah. I think Exhibit 3 6 FURTHER CROSS-EXAAIINATION 7 is -- I bave less a problem witb, but it is 7 BY MIL DI MUZIO: 8 interesting to see what soniebody else bid on it, 8 Q. This may have been asked and/or it may 9 but iPs hearsay. Wejust don't know if it 9 have been noted in your earlier testimony, so I 10 closed. 10 apotogize. Was there a minimum bid that was 11 He is probably right, the fact that it is 11 required on this property? 12 back on the market two tnonths later, it probably 12 A. No. I don't believe so. But you had -- 13 did not close, but we don`t really know why it 13 But you had to present a cashier check for $50,000 14 didn't close. 14 in order to be allowed to bid, and -- 15 So I am not sure it's value. And again, 15 Q. And did you make an initial bid of 504 16 it appears to have been a bid in a foreclosure 16 A. I don't remember exactly how it 17 process. 17 proceeded, you know, if I started it or not. 18 Exlribit 2, I strongly disagree. I Imow 18 Q. Okay. But there were other bids? 19 the Board's on record in many cases indicating 19 A. Yeah. We went back and forth. T'here 20 that -- what the assessments are, No. 1, are not 20 wasn't -- I mean, it was relatively sbort, I mean 21 probative for surrounding properties. 21 in a sense that -- but it probably went on for 10 22 And I initially objected to the 2006 22 or 15 minutes. 23 assessment of the subject property, and aQ of a 23 Q. Okay. And you are given a certain amount 24 sudden now he thinks that assessments are good 24 of tiene to close after? 25 evidence as long as they support his number. 25 A. Yeah, I was -- I was able to close Page 27 Page 29 1 But, you know, it's two years after the 1 whenever they presented the documents :utd I got 2 tax year date and it appears to be just a bump up 2 title and insurance. And, you know, so whatever 3 from the Board of Revision's decision. And, of 3 the -- whatever their formal process was, they 4 course, ilte individual sale of the subject that 4 just handled it and I was abte to close whenever. 5 did occur, we feel is -- clearly is a forced sale 5 IvIIt. DI MUZIO: Okay. That is ai1 I have. 6 and is not probative. 6 THEEXAtvIIIQF.,R: Okay. Mr.DiMuzio,doyou 7 I did have a couple follow-up questions, 7 have a closing statement you would like to make in 8 once you make a raling, on some of the stuff you 8 lieu of filing a briePi 9 have asked him. 9 MR. DI MIIZIO: Yes. Ohio law is clear 10 THE EXAIvffNER: Okay. And Exhibit I is 10 that forced sales are ngtgoed-®ul iice of value. 11 the photos. Did you have anything you wanted 11 That is-the bnly evidence that-has real . een 12 to -- 12 presented, was this foreclosure sale. T1rer has 13 MR. DI MUZIO: No, no problem. 13 een additional evidence of another forec sure 14 TAE EXAMINER: Okay. Certainly your 14 ale that apparently was never ciosed e 15 objections are noted for the record and the Board 15 ayer adnu.tted they did not separe or 16 will take into consideration the comments that you 16 co ' sion an a-vusals 17 have raised with regard to the exhibits; however, 17 There is simply no evidence of any sale 18 Exhibits I through 4 will be received into 18 in Hamilton County at $3,600 or $3,700 a square 3.9 evidence. 19 foot. I can4 think of an cxaznple where there has 20 --- 20 been less evidence put forward in support, in 21 Thereupon, Appellee's Exhibit Nos. 1 21 terms of market support, for a decision by the 22 through 4 were received into evidence. 22 Board. 23 --- 23 Clearly the Board just adopted the forced 24 'I'HE EXAMIbIER: And I apologize, 24 sale. You know, Ohio law has to mean something. 25 W. DiMuzio, you may continue with your 1 25 When the court's say that a forced sale is not
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Page 30 Page 32 1 good evidence, it has to mean something. 1 It was just something that the Board 2 And I realize because of the series of 2 adopted improperly, and it is a violation of Ohio 3 Supreme Court decisions, this Board is reluctant 3 law. It was arbitrary and capricious and 4 to just, you know, reassign the tax bill value. 4 speculative in nature and lacks any probative 5 But the burden of proof bas to mean sometbing, and 5 support. 6 clearly they had that burden. It never shifted. 6 So I would ask tlie Board to either 7 They never presented any probative evidence. 7 reinstate the original tax bill value or adopt the 8 Sometimes Boards of Revision make a 8 $7,500 per-unit value. 9 mistalce. The easy thing to do is what they did, 9 TI-IE EXAMINER: Thank you. 10 which is to throw their hands up and say the 10 Mr. Fennel, do you have a closing 11 current valuation is too high, and then adopt had 11 statement you would like to make? 12 evidence to support what they did come up with. 12 MR. FENNEL: Yes. I guess I would go 13 So to me, this is different from some of 13 along with - try to extrapolate on the idea that 14 tha other Supreme Cou t cases in that there has 14 the County Appraiser who was present at the 15 never been any shifting. There has never been any 15 previous hearing did make it clear that she didn't 16 probative evidence. 16 think that the County's valuation was accurate. 17 The only appraiser that testified at the 17 She didnt give a new number, apparently didn't go 1 B hearing testified that there was -- there was 18 along "T7 19 insufficient support for the $135,000 value. She 19 But this was a property on the marke 20 also testified she thought the current value was 20 went through two separate sales, publicized 21 too high. Didn't give any reason -- didn't 21 auctions. Anybody had the opportunity to e in 22 produce any sales that supported that, but did 22 n 23 make that statement 2 3 I think the Board did consider the photos 24 So what are we left with? Well, I think 24 1 provided at the previous bearing that 25 we are left with either recognizing that there has 25 dramatically shows, you know, the damage, Page 31 Page 33
1 been no probative evidence and retuming to the vandalism that has occurred inside these 2 original valuation; or, the Board oan try to fmd apartments that dratnatically impacted the finance 3 evidence in the record that ruight support some saliency of this building as far as getting it 4 lower value. back on the market, the amount of money that would 5 And as I meMioned, the only -- I don't have to be put back into this building just to get 6 think you can use Exhibit 3. It's not a bad it to a livable condition. Plumbing; and you 7 number from our standpoint, but it's -- ifs an know, kitchens, bathroonts, you know, completely 8 unclosed offer, just another offer that, for have to be reconstruoted along with all of the 9 whatever reason, didn't close. We don't know why doors, and some other drainage issues that haven't 10 it didn't close, but it didn't. really been talked about. 11 And we Imow we can't use the sale of the But this building is a blighted property. 12 subject because that was a forced sale. As I I don't - I can't imagine putting it on the 13 mentioned, there is some discussion in the record market and gett:ing probably auything more than 14 of what was the lowest per-unit value that anybody what I've got in it at this ttme. 15 would think of that had come across the Board I've never had the need personally -- I 16 recently, and that was, I thin.k, the $7,500 per inean, like I never went through a bank. I never 17 unit that I had mentioned. needed a bank to fmance it because I was paying 18 I just think in the absence of how -- you cash, so I never needed an appraisal. And I never 19 know, any supporting data, you know, even felt the need to pay for an appraisal to satisfy 20 Ms. McFeeters who was there and present, you know, my own investment needs, and so that is the 21 could have -- if she was aware of anything, could primary reason that I didn't have one to present 22 have mentioned or discussed any other sale that to the County Board of Revision. 23 supported any kind of a lower number. But she Anyway, I think this 135,000 accurately 24 didn't do it. She did not recommend the 15- -- or represents the value of this property. T guess 25 the$135,000. the things that are -- if there is any questions
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1 about the IILJD sales, I'm sure that that is -- all 1 C E R T I F I C A T E 2 of these dctails can be -- acWal documents can be 2 --- 3 obtained as far as the previous sales. 3 State of ohio, 4 4 ) SS: And I can only imagine that the previous 5 5 Countp of Franklin, sale didn't go through because they maybe went to 6 L Tammy L. Luchini, Professional Court 6 a bank and/or tried to get financing to buy it, 7 Reporter and Notary Public in and for the State of 7 and the bank, you know, didn't think this was 8 Ohio, hereby certify that the foregoing is a true 8 realistic and would be willing to support it. I 9 and accurate transcript of the proceedings 9 nean, in general, someone -- a $500,000 sale would 10 hereinbefore set forth, as reported in stenotype 11 10 need bank financing. by me and transcribed by me or under my 1 2 11 That is all. supervision. p 12 13 TI3E EXAMINB3t: Okay. Thank you. 14 13 Before we close the record, I did want to Tammy L. Luchini, 14 putone thing prior that we discussed g to goin on 15 Professional Court 15 the record, on the record, and that is at the time Reporter and Notary 16 of the purchase of this property, the property was 16 Public in and for the 17 titled in Fenco Development Company; is that State of Ohio. 18 correct. 17 18 19 THE WITNESS: That's eorreet. My Conunission Expires: June 14, 2009. 20 19 TI-IE EXAiv137NER: And if you could just 2 0 2 I state for the record your relationship to Fenco 22 Development Company. 222 23 MR FENNEL: I'm the President and the 23 24 only shareltolder of the -- it's a Sub S 24 25 Corporation. 25 Page 35 1 TiTJ: LXAMIIVBR: All right. Well, the 2 Board thanks you all for coming. We appreciate 3 your time, and this hearing is now concluded and 4 we will be issuing a decision shortly. Thank you. 5 --- 6 (Thereupon, the hearing was concluded 7 at 9:52 o'clock a.m. on Wednesday, 8 March 4, 2009.) 9 --- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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A 28:10 assessment 3:13 21:22 19:2 20:11 abandoned 15:24 apparently 8:11 15:16 26:23 basically 9:8,8 brief 29:8 able 25:1128:25 8:18 29:14 32:17 assessments 26:20 13:7 15:12,22 bring 15:2 29:4 appea14:12,23,25 26:24 16:6 19:2 Broad 1:14 4:19 absence 8:24 9:16 appealed 7:8 assignment 1:18 basis 7:13,14 9:25 building2:6 5:20 9:20 31:18 Appeals 1:1 4:11 4:20 bathroom 14:11 14:10 15:13,19 14:18 absolutely 8:20 4:15,17,22,24 assume 8:14 19:22 16:8 17:23 18:11 23:1 appearance 5:17 22:10 bathrooms 33:7 18:18 20:22,24 accessed 14:22 6:1,9,12 24:21 assuming 24:6 behalf 2:3,13 5:22 24:16,17,20,23 accurate 15:6 18:5 APPI;ARANCI:S 25:23 6:8 25:9,12 33:3,5 18:22 32:16 36:9 2:1 assumption 21:18 believe 12:18 33:11 accurately 14:4 appears 5:7 8:4 21:24 28:12 built 19:7 24:19 33:23 21:15 26:16 27:2 attempt 11:15 best 8:15 9:9,14 bump 27:2 acquired 11:10 Appellant 1:6 2:3 13:3,8 beyond 12:8 burden 9:6 30:5,6 4:13 5:1,12 actual 14:4 16:7 attended 13:13,14 bid 24:6 26:8,16 buy 24:14 34:6 34:2 Appellant's 5:16 Attorney-Exami... 28:10,14,15 buyers 11:24 1:21 4:21 additiona17:7 9:3 Appellee 2:13 bidder 14:2 15:10 29:13 6:11 attractive 16:5 bidders 11:21 C 24:18 C 1:12,21 2:4,5 adjacent 20:20,24 Appellees 1:10 13:14,15,25 4:14 23:25 admissible 12:9 Auburn 17:15 4:1,17,21 5:19 3:10,12 23:6 admittcd 21:8 Appellee's bidding 14:11 36:1,1 29:15 3:14,16 4:6 5:25 auction 11:16 bids 28:18 capricious 9:15 32:3 adopt 9:22 30:11 27:21 12:21 13:11,12 big 17:4 13:14,20,21 14:2 1:21 4:20 32:7 applicd 8:22,23 bill 9:20 30:4 32:7 Carrie adopted 9:9 29:23 22:7 23:24 24:4,4,7 blighted 15:24 case 1:7 4:15,16 32:2 appraisal 7:19,25 auctions 13:12 20:25 33:11 cases 26:19 30:14 32:21 25:11 33:18 advertised 13:13 8:8,11 19:12,23 Board 1:1,5,8 4:11 cash 24:3 33:18,19 Auditor 5:10,14 4:13,14,14,17,21 cashier28:13 age 11:2 appraisals 29:16 6:8 4:24,25 5:2,11 certain 28:23 ago 6:22 25:18 appraiser 7:23 Auditors 21:17 6:7,25 7:4 9:7,18 certainly 12:10 17:6 27:14 al 1:9 4:14 20:18 30:17 Auditor's 5:8 7:22 9:21,25 10:1 32:14 available 25:11 12:10 16:23 certified 7:23 allowed 28:14 13:15 allows 16:4 appraisers 19:18 aware 31:21 17:12 18:25 21:8 amount 15:7 appreciate 35:2 a.m 1: 19 4:20 6:5 22:6 27:3,15 certify 36:8 28:23 33:4 approach 9:11 35:7 29:22,23 30:3 chance 17:3 15:15 18:2 and/or 28:8 34:6 approximately 6:5 31:2,15 32:1,6 change 7:1 11:17 15:21 B 25:21 answer 18:21 32:23 33:22 35:2 baclc anybody 22:4 arbitrary 9:15 9:19 12:16 boarded 14:13 changes 21:21 31:14 32:21 32:3 14:25 15:3,8 boarded-up 24:14 check 28:13 20:2,21 22:14,22 checks 13:15 anyway 11:6 13:1 area 13:24 15:15 Boards 30:8 16:6 33:23 18:13,15 19:14 26:12 28:19 33:4 Board's 26:19 Cincinnati 1:4 2:8 21:25 22:8 33:5 boilerplate 21:14 4:12 5:21,22 apartment 14:10 13:24 15:20 17:21 arm's-length 9:13 bad 30:11 31:6 borrowed 25:12 24:14 asked 7:15,19 bank 33:16,17 bottom 16:24 City 13:17 34:6,7,10 clainis 5:12 apartments 33:2 17:12 27:9 28:3 17:11 based 15:6,13 clear 9:4 29:9 apologize 27:24 28:8 bought 11:7,7
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32:15 condo 18:15 dated 6:7 d ocument 21:4,12 exactly 23:2 28:16 cleariy 9:12 27:5 condos 17:25 dates 22:19 22:4 23:3 examined 11:3 29:23 30:6 confi"rmed 7:24 Dave 5:18 documentation 12:4 eiose 8:21 12:6,7 consider 32:23 David 2:4,5 5:19 8:2 EX.A.MINER 4:10 12:14,15 22:17 consideration dea117:4 documents 29:1 5:24 6:3,16 10:5 26:13,14 28:24 27:16 December 6:7 34:2 10:9 12:10 16:9 28:25 29:4 31:9 continue 12:12 12:17 23:11 door 14:17 24:25 16:15 17:6 23:21 31:10 34:13 27:25 decide 20:18 25:1,19 25:23 26:2 27:10 closed 3:15 12:5 continuing 21:7 decision 4:25 7:9 doors 14:14,14 27:14,24 29:6 12:14 22:14 contract 23:16 10:2 27:3 29:21 33:9 32:9 34:12,20 26:10 29:14 copper 14:9 35:4 doubt22:16 35:1 closing 3;17 12:4 copy 15:11 17:1,5 decisions 30:3 drainage 33:9 example 29:19 29:7 32:10 17:7 deed 19:25 20:5 dramatically exhibit 3:10,12,14 clues 9:4 Corporation 5:6 delinquency 11:12 32:25 33:2 3:16 4:6 11:14 coincidence 9:10 34:25 depending 19:6 dream 18:8 25:1 14:6 15:11 16:10 Colors 23:5 correct 5:13 23:13 deplorable 8:7 dreamer 24:13 16:12 21:3,5,13 Columbus 1:16 34:18,19 14:8 19:4 dreams 20:4 22:12,25 26:6,18 4:19 cost 14:23 described 16:11 drove 24:16 27:10,21 31:6 come22:24 24:5 country 24:2 destruction 14:10 duly 11:2 exhibits 3:9 16:11 30:12 31:15 County 1:8 4:14 details 34:2 25:24 27:17,18 32:21 4:25 5:2,7,10,11 deteriorate 16:3 E experts 19:19 coming 35:2 5:25 6:21,23 determined 5:3,15 E 3:1 4:1,1 36:1,1 Expires 36:18 6:23 19:13 comments 27:16 15:10 21:4,20 develop 17:24 earlier expressed 26:3 commission 29:16 22:9,10 29:18 Development 2:13 21:6 28:9 exterior 24:18,19 36:18 32:14 33:22 36:5 34:17,22 East 1:14 4:18 extrapolate 32:13 commissioned County's 32:16 DI5:18 6:19 11:22 easy 30:9 E-mail2:11 19:22 couple 16:18 16:18,21 17:8,10 Education 1:5 F Company 2:13 22:20 23:22 26:3 23:19 26:6 27:13 4:13 34:17,22 27:7 28:2,7 29:5,9 eight 13:25 23:25 F 36:1 compare 19:3 course 27:4 different 7:10,10 either 9:19 30:25 fact 19:6 26:11 complained 6:25 Court2:15 6:14 24:20 30:13 32:6 familiar 11:8 complete 11:19 30:3,14 36:6,15 DiMuzio 2:4,5 3:6 enforced 20:9 familiarize 24:8 12:22 14:9 court's 29:25 3:7 5:19,19,24 engagement 12:20 far 14:21 22:13 24:10 33:3 34:3 completed 16:13 covenant20:8 6:17 16:16 26:2 enter 5:17 6:1,12 23:14 Craig 2:14 3:4 27:25 29:6 Esq 2:4 Fax 2:10 completely 15:24 6:13 11:1 Direct 3:5 11:5 et 1:9 4:14 feel 7:12 9:1,11 24:20 33:7 cross-examinati... direction 18:4,17 Evansville 13:19 16:6 27:5 7:2,8,9 completion 20:14 3:6,7 16:20 28:6 disagree 26:18 evidence felt 7:9 8:9 24:9 33:19 20:16 current 8:10 9:21 discrepancy 22:2. 8:13,15,20,24 complex 15:20 15:5 30:11,20 discusscd 31:22 9:3,5,7,10,14,16 Fenco 2:13 34:17 17:21 34:14 9:17,20,23 10:1 34:21 cosnplexes 24:15 D discussion 8:14,16 10:3 12:9 25:24 FenneI2:14 3:4 concluded 35:3,6 D 3:1 4:1 9:24 31:13 26:25 27:19,22 6:13,13 7:15 8:2 condition 8:7 14:7 damage 32:25 District 1:4 4:12 29:10,11,13,17 9:2 10:6 11:1 15:22 16:3,8 data 31:19 5:6,23 29:20 30:1,7,12 12:13 16:17,22 19:4 33:6 date 8:9 27:2 doe 15:2 30:16 31:1,3 16:25 23:21
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32:10,12 34:23 given 28:23 22:17 34:1 keep 16:2 lieu 29:8 filed 4:23 go 21:17 32:12,17 kicked 14:15 likes 10:1 filing 29:8 34:5 I kind 18:7 31:23 listed 13:7 Snally 6:11 goes 22:10 idea 12:24 20:17 kitchen 14:11,19 livable 14:25 15:8 finance 33:2,17 going 12:7 14:23 22:9 32:13 kitchens 33:7 33:6 financing 34:6,10 16:25 17:22,25 identification 4:8 knew 23:4,8 24:25 live 20:3 find 10:1 22:1 18:11,19 23:3 imagine 14:21 know 9:25 11:23 located 5:5 31:2 34:14 15:25 22:17 12:2 13:1,5,11 long26:25 firm 5:19 good 17:14 26:24 33:12 34:4 13:16,20,23 look 19:3 20:20 first 11:2 25:18 29:10 30:1 impact 20:10 14:20 15:1,23 21:24 Floor 1:15 4:18 guess 18:4 19:24 impacted 33:2 17:2,4,18,19,20 looked 15:18 22:5 floundering 25:19 32:12 33:24 implications 21:11 17:24 18:1,7,10 24:23 following 17:14 guy 13:18 improperly 32:2 18:10,10,11,13 iooking 21:18 25:8 follows 11:4 includes 14:8 18:15,21,22,25 looks 23:12 follow-up 27:7 H increase 22:6 19:6,11 20:3,6,7 lot 18:2 25:6 foot 29:19 Hamilton 1:8 4:13 Indiana 13:19 20:8,9,15,18 low 19:17 forced 7:14 9:1,6 5:7 6:21 21:4,20 indicated 23:24 21:1,13,16 22:2 lower 31:4,23 27:5 29:10,23,25 29:18 indicating 12:6 22:13,14,18 23:2 lowest 31:14 31:12 hand 10:7 13:15 26:19 24:1,9,13 25:3,4 low-income 15:3 foreclosed 22:18 handled 29:4 individual 14:22 25:5,13,16,16 17:15 20:2 22:22 hands30:10 27:4 26:2,9,13,18 Luchini 36:6,14 18:12,20 foreclosure 7:1,13 happen information 8:8 27:1 28:17 29:2 luxury 17:25 7:16,17,17,25 happened 18:14 24:2 29:24 30:4 31:9 18:14 8:23 9:9 23:13 18:17 25:20 initial28:15 31:11,19,19,20 26:16 29:12,13 heard4:16 17:20 initially 26:22 32:25 33:7,7 M 18:15 foregoing36:8 inside24:21 33:1 34:7 mailed 5:1 forfeit 12:23 bearing 1:12 4:10 insuff4cient 8:3 knowing 24:1 March 1:17 4:3,19 forfeited 11:21 4:16 6:9 7:3,15 30:19 knowledge 12:13 35:8 formal 29:3 7:24 8:17,20 insurance 29:2 21:19 marked 3:9 4:7 forth 6:25 28:19 16:23 25:18 intent20:13 knows 12:2 market 9:16 10:3 36:10 30:18 32:15,24 interesting 26:8 Kroger 2:6 5:20 12:16 16:4 18:4 forward 9:6 29:20 35:3,6 invest 19:20 22:15,22 26:12 found 15:15 hearsay 11:23 investment 33:20 L 29:21 32:19 33:4 foundation 12:1 26:9 involve 6:20 1L 36:6,14 33:13 Franldin 36:5 held 7:3 issue 9:24 lacks 32:4 marketplace 8:25 Further 3:7 28:6 hereinbefore issues 33:9 land 19:5 matter 24:24 36:10 issuing 35:4 language 21:14 McClusky 17:11 G high 8:10 30:11,21 larger 15:20 McFeeters 7:23 G4:1 higher 19:15 J law 9:11 11:3 29:9 31:20 gamble 25:3,6 home 21:21 J 6:8 29:24 32:3 mean 11:16 14:1 general 21:18 34:9 homes 13:5 January 6:21 lawful 11:2 20:10,14 22:9 getting 12:8 33:3 housing 15:3 12:18,19 lean 8:9 25:22 28:20,20 33:13 17:16 20:2 jogged 28:2 left 30:24,25 29:24 30:1,5 give 8:8,10 9:4 HUD 11:7,8 12:16. June 36:18 legaltrial@yaho... 33:16 34:9 15:11 30:21 12:21 13:3,6 2:11 means 13:4,10 K 32:17 15:1 16:12 20:9 letter 6:7 14:2,16 19:14
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iNeStlaw. OH ST § 5717.04 Page I R.C. § 5717.04 c BALDWIN'S OHIO REVISED CODE ANNOTATED TITLE LVIT. TAXATION CHAPTER 5717. APPEALS 5717.04 Appeal from decision of board of tax appeals to supreme court
The proceeding to obtain a reversal, vacation, or modificati.on of a decision of the board of tar, appeals shall be by appeal to the supreme court or the court of appeals for the county in which the property taxed is situate or in which the tax- payer resides. If the taxpayer is a corporation, then the proceeding to obtain such reversal, vacation, or modificatiorr shall be by appeal to the supreme court or to the court of appeals for the county in which the property taxed is situate, or the county of residence of the agent for service of process, tax notices, or demands, or the county in which the corporation has its principal place of busi- ness. In all other i.nstances, the proceeding to obtain such reversal, vacation, or modification shall be by appeal to the court of appeals for Franklin county.
Appeals from decisions of the board determining appeals from decisions of county boards of revision may be instituted by any of the persons who were parties to the appeal before the board of tax appeals, by the person in whose name the property involved in the appeal is listed or sought to be listed, if such person was not a party to the appeal before the board of tax appeals, or by the county auditor of the county in which the property involved in the appeal is located.
Appeals from decisions of the board of tax appeals determining appeals from final determinations by the tax commissioner of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders rnade by the commissioner may be instituted by any of the persons who were parties to the appeal or application before the board, by the person in whose name the property is listed or sought to be listed, if the decision appealed from de- termines the valuation or liability of property for taxatiorr and if any such per- son was not a party Lo the appeal or application before the board, by the taxpayer or any other person to whom the decisiorr of the board appealed from was by law re- quired to be certified, by the director of budget and management, if the revenue affected by the decision of the board appealed from would accrue primarily to the state treasury, by the county auditor of the county to the undivided general tax f.unds of which the revenues affected by the decision of the board appealed from would primarily accrue, or by the tax commissioncr.
Appeals from decisions of the board upon all other appeals or applications filed with and determined by the board may be instituted by any of the persoris who were parties to such appeal or application before the board, by any persons to whom the decision of the board appealed from was by law required to be certified, or by any other person to whom the board certified the decision appealed from, as authorized
O 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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OH ST § 5717.04 Page 2 R.C. § 5717.04
by section 5717.03 of the Revised Code.
Such appeals shall be taken within thirty days after the date of the entry of the decision of the board on the journal of its proceedings, as provided by such sec- tion, by the filing by appellarit of a notice of appeal with the court to which the appeal is taken and the board. 7f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date on which the first notice of appeal was filed or within the time otherwise prescribed in this section, whichever is later. A notice of appeal shall set forth the decision of the board appealed from and the errors therein complained of. Proof of the filing of such notice with the board shall be filed with the court to which the appeal is being taken. The court in which notice of appeal is first filed shall have exclusive jurisdiction of the appeal.
In all such appeals the tax commissioner or all persons to whom the decision of the board appealed from is required by such section to be certified, other thari the appellant, shall be made appellees. Unless waived, notice of the appeal shall be served upon all appellees by certified mail. The prosecuting attorney shall represent the county aud.itor in any such appeal in which the auditor is a party.
The board, upon written demand filed by an appellant, shall within thirty days after the filing of such demand file with the court to which the appeal is being taken a certified transcript of the record of the proceedings of the board per- taining to the decision complained of and the evidence considered by the board in making such decision.
If upon hearing and consideration of such record and evidence the court decides that the decision of the board appealed from is reasonable and lawful it shall af- firm the same, bit if the court decides that such decision of the board is unreas- onable or unlawful, the court shall reverse and vacate the decision or modify it and enter final judgment in accordance with such modification.
The clerk of the court shall certify the judgment ot the court to the board, which shall certify such judgment to such public officials or take such other action in connection therewith as is required to give effect to the decision. The "taxpayer" includes any person required to return any property for taxation.
Any party to the appeal shall have the right to appeal from the judgment of the court of appeals on questions of law, as in other cases.
Copr. C^) 2008 Thomson/West
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O 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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