COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59980 BANBURY VILLAGE, INC. : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CUYAHOGA COUNTY BOARD OF : REVISION, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 179776 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: FRED SIEGEL KAREN H. BAUERNSCHMIDT TODD W. SLEGGS ROBIN J. LEVINE 2700 National City Center 1900 East Ninth Street Cleveland, Ohio 44113 For Defendant-Appellee STEPHANIE TUBBS JONES Cuyahoga County Board of Cuyahoga County Prosecutor Revision and County Auditor: SAUNDRA CURTIS-PATRICK, Ass't. Ninth Floor - Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee TIMOTHY J. ARMSTRONG Warrensville Heights Board 1725 The Midland Building of Education: 101 Prospect Avenue, West Cleveland, Ohio 44115-1092 - 2 - KRUPANSKY, J.: Appellant Banbury Village, Inc. ("Banbury") appeals from a judgment of the Cuyahoga County Common Pleas Court affirming a real property tax assessment and valuation decision of the Cuyahoga County Board of Revision ("Board") for certain rental property owned by appellant in the taxing district of Warrensville Heights. Appellant complains the common pleas court entered final judgment without conducting a formal evidentiary hearing to supplement the record on appeal. The Cuyahoga County Auditor originally determined the fair market value of the subject property for the 1988 tax year to be $4,712,970 and applied a 35% common level assessment to arrive at an assessed valuation of $1,649,540 for the year. Appellant subsequently filed a complaint with the Board March 27, 1989 contending the subject property had a fair market value of $2,580,000 and alleged "the common level assessment is less than 35% and requests a determination of the correct common level." Appellee Warrensville Heights Board of Education ("BOE") filed a counter complaint with the Board seeking to increase the tax valuation of the subject property contending the fair market value was $4,713,490. Approximately six months thereafter, in a letter dated five days prior to the scheduled October 4, 1989 hearing before the Board, appellant moved to amend its complaint before the Board to contend the "35% common level assessment is unlawful, - 3 - discriminatory and unconstitutional" since the local "sales assessment ratio studies were not utilized to arrive at the 35% common level." At the hearing before the Board appellant failed to present any appraisal testimony relating to the subject property, the sales assessment ratio studies underlying its common level assessment claim, or request a continuance for the purpose of obtaining and submitting this information. The record demonstrates appellant through counsel merely submitted a letter of general information concerning the subject property, various maps of the property, rental and other income and operating expense reports, a rent roll for the year, various newspaper ads and lists of sales along with an affidavit allegedly signed in the name of appellant purporting to authenticate the items. An unsigned mortgage equity valuation report was also presented without any explanation for the validity or reasonableness of the underlying assumptions upon which it was made. It appears no verbatim transcript of the hearing was made. The Board subsequently rendered its decision finding appellant did not sustain its burden of proving any change to the Auditor's assessed valuation of the property was warranted. The Board likewise denied appellee BOE's counter complaint seeking an increase in the property valuation. Appellant appealed the decision of the Board to the Cuyahoga County Court of Common Pleas November 31, 1989 and the statutory - 4 - transcript from the Board was transmitted to the common pleas court as part of the record. Appellant's notice of appeal from the Board to the common pleas court requested a hearing to supplement the record with additional evidence. Appellee BOE did not appeal from the Board's denial of its complaint. The common pleas court subsequently affirmed the decision of the Board in an entry journalized May 15, 1990 without conducting a hearing and without appellant introducing any additional evidence. The record demonstrates appellant failed to file any motion to submit additional evidence until after the common pleas court rendered its decision. The common pleas court denied appellant's motion for reconsideration and request for oral argument after entering its judgment. Appellant filed a timely notice of appeal raising eleven 1 assignments of error. However, appellant's brief does not separately brief or argue these assignments of error and merely rehashes the identical arguments rejected by the Tenth District Court of Appeals in a similarly constructed brief. Sears, Roebuck & Co. v. Franklin Cty. Bd. of Revision (Dec. 20, 1990), Franklin App. No. 90AP-472, unreported, appeal dismissed, 59 Ohio 2 St. 3d 718. Consequently, the Court shall disregard the 1 Appellant's eleven assignments of error are set forth in the Appendix. 2 Appellant's five arguments set forth in its brief on appeal are also labelled "assignments of error" and are set forth in the Appendix. - 5 - assignments of error which are not properly briefed and address only appellant's first, fourth, sixth, tenth and eleventh assignments of error. App. R. 12(A); Oliver v. Cleveland Trinidad Paving Co. (Sep. 27, 1990), Cuyahoga App. No. 57550, unreported (citations omitted). I. Appellant's first and fourth assignments of error challenge the common pleas court's final judgment and failure to consider materials beyond those presented to the Board as follows: ASSIGNMENT OF ERROR NO. 1 THE DECISION OF THE COURT OF COMMON PLEAS WHICH AFFIRMED THE DECISION AND ORDER OF THE CUYAHOGA COUNTY BOARD OF REVISION IS UNREASONABLE, UNLAWFUL AND CONTRARY TO THE LAWS OF OHIO. ASSIGNMENT OF ERROR NO. 4 THE COURT OF COMMON PLEAS ERRED IN RELYING SOLELY ON THE RECORD OF THE HEARING BEFORE THE BOARD OF REVISION IN AFFIRMING THE BOARD OF REVISION DECISION AND ORDER. THE BOARD OF REVISION HEARING WAS NOT A DUE PROCESS HEARING. Appellant contends the common pleas court improperly failed to conduct a "hearing" to supplement the record of the Board prior to rendering its decision. However, R.C. 5717.05 governs the procedure for appeals from the Board to the common pleas court and provides in pertinent part as follows: The court may hear the appeal on the record and the evidence thus submitted, or it may hear and consider additional evidence. It shall determine the taxable value of the property whose valuation or assessment for taxation by the - 6 - county board of revision is complained of, or if the complaint and appeal is against a discriminatory valuation, shall determine a valuation that shall correct the discrimination, and the court shall determine the liability of the property for assessment for taxation, if that question is in issue, and shall certify its judgment to the auditor, who shall correct the tax list and duplicate as required by the judgment. (Emphasis added.) The Ohio Supreme Court has repeatedly rejected appellant's contention that this provision mandates the common pleas court to examine additional evidence not submitted to the Board. Park Ridge Co. v. Franklin Cty. Bd. of Revision (1987), 29 Ohio St. 3d 12; Black v. Bd. of Revision (1985), 16 Ohio St. 3d 11. Accord Sears, Roebuck & Co. v. Franklin Cty. Bd. of Revision, supra; Albrecht, Inc. v. Summit Cty. Bd. of Revision (1987), 39 Ohio App. 3d 115; Diversified Mtg. Investors v. Bd. of Revision (1982), 7 Ohio App. 3d 157. This provision simply requires the common pleas court make an independent determination concerning the Board's decision upon the existing Board record, together with any evidence the court determines, in its discretion, to examine. Id. This Court has held that the proper procedure to request supplementation of the record pursuant to R.C. 5717.05 is filing a motion with the common pleas court accompanied by supporting evidence. Leiden Cabinet Co. v. Cuyahoga Cty. Bd. of Revision (May 12, 1983), Cuyahoga App. No. 45584, unreported. Appellant in the case sub judice failed to file such a motion or otherwise submit any additional evidence to the common pleas court for - 7 - consideration while the matter was pending for approximately five and one half months. Appellant's motion for an "oral hearing" after the common pleas court rendered its judgment on the merits did not contain any supporting evidence and, as discussed under appellant's tenth assignment of error infra, the common pleas court lacked jurisdiction to consider the motion. Under the circumstances, appellant has failed to demonstrate any abuse of discretion. Id. Based upon our review of the record sub judice, appellant failed to present any competent credible appraisal testimony or other evidence to the Board or the common pleas court to satisfy its burden of proving any reduction in the fair market value of 3 the subject property. Id.; Crow v. Cuyahoga Cty. Bd. of Revision (1990), 50 Ohio St. 3d 55, 57; R.R.Z. Assoc. v. 4 Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio St. 3d 198, 202. Appellant's failure to produce any evidence supporting its common 3 Arguments of counsel before the Board, whether made orally or by letter as in the case sub judice, do not constitute "evidence." See, Van Horn v. Peoples Banking Co. (1990), 64 Ohio App. 3d 745. 4 Appellant filed a "Notice of Additional Authority" with this Court five days prior to oral argument based upon the decision of the Board reducing the assessment and valuation for the subject property for the 1990 tax year. The Court granted appellee's motion to strike this material since it did not constitute additional authority under App. R. 21 and merely sought to improperly expand the factual record on appeal. The valuation of the property for the 1990 tax year does not determine the valuation for prior tax years. - 8 - level assessment claim likewise compelled rejection of that claim. The Ohio Supreme Court has rejected appellant's contention that the reviewing body must prepare findings of fact and conclusions of law even when, unlike the case sub judice, properly and timely requested. Wolf v. Bd. of Revision (1984), 11 Ohio St. 3d 205, 206 (appeal to the Board of Tax Appeals). We find the record in the case sub judice provides a sufficient basis for meaningful review and unanimously find the judgment of the common pleas court is not unreasonable, unlawful or contrary to law. Accordingly, appellant's first and fourth assignments of error are overruled. II. Appellant's sixth and eleventh assignments of error relate to various constitutional claims as follows: ASSIGNMENT OF ERROR NO. 6 THE COURT OF COMMON PLEAS FAILED TO TAKE EVIDENCE ON THE CONSTITUTIONAL ISSUE OF THE COMMON LEVEL OF ASSESSMENT AS REQUIRED BY THE OHIO SUPREME COURT IN CLEVELAND GEAR CO. v. LIMBACH (1988), 35 OHIO ST. 3D 229. ASSIGNMENT OF ERROR NO. 11 THE DECISION OF THE COURT OF COMMON PLEAS VIOLATES THE APPELLANT'S RIGHTS OF DUE PROCESS, EQUAL PROTECTION, AND UNIFORMITY OF TAXATION GUARANTEED UNDER THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION. Appellant's sixth and eleventh assignments of error lack merit. - 9 - Appellant contends the common pleas court improperly refused to admit evidence that Ohio Administrative Code Rules 5705-3- 01(B), 5705-3-02(B) and (C) are "unconstitutional" as applied to the facts of the case sub judice contrary to the equal protection and uniformity of taxation guarantees of the United States and 5 Ohio Constitutions. However, as noted above the common pleas court did not refuse to admit any evidence, appellant merely failed to present any. The Ohio Supreme Court has held in the context of constitutional challenges to tax legislations as follows: A question involving the constitutionality of the application of tax statutes in particular situations must be raised at the first opportunity. That was not done in this case and we have no jurisdiction to determine the issue. Toledo Jewish Home for the Aged, Inc. v. Limbach (1990), 53 Ohio St. 3d 52 at 55 (emphasis added). The Ohio Supreme Court emphasized the practical necessity for presenting an adequate record for review upon appeal in Cleveland Gear Co. v. Limbach (1988), 35 Ohio St. 3d 229, at paragraph three of the syllabus: The question of whether a tax statute is unconstitutional when applied to a particular state of facts must be raised in the notice of appeal to the Board of Tax Appeals, and the Board 5 Ohio Adm. Code 5705-3-01(B) specifically provides that the "taxable value" of each parcel of real property and the improvements thereon shall be thirty-five percent of the "true value in money" of said parcel. Ohio Adm. Code 5705-3-02(B) and (C) require the county auditor to reappraise each parcel of real property at one hundred percent of its true value in money and to redetermine its taxable value every six years. - 10 - of Tax Appeals must receive evidence concerning this question as presented, even though the Board of Tax Appeals may not declare the statute unconstitutional. Id. (Emphasis added); Captain Franks, Inc. v. Joanne Limbach, Tax Comm'r. of Ohio (Nov. 14, 1990), Cuyahoga App. No. 59300, unreported. In the case sub judice, appellant belatedly sought to amend its complaint five days prior to the hearing before the Board to challenge the constitutionality of these provisions. Appellant's failure to properly raise these constitutional challenges deprives this Court of jurisdiction to determine whether Rules 5705-3-01(B), 5705-3-02(B) and (C) are unconstitutional as applied in the case sub judice. Toledo Jewish Home for the Aged, Inc., supra; see, also Sears, Roebuck & Co. v. Franklin Cty. Bd. of Revision, supra at 9-10. We note even if appellant had properly raised this issue before the Board, this Court would be compelled to reject appellant's argument based upon appellant's failure to present any evidence to support its equal protection or non-uniformity claims. Although Cleveland Gear, supra, permits appellant to raise a claim that these provisions of the Ohio Administrative Code are facially unconstitutional for the first time on appeal, id. at syllabus paragraph two, we likewise agree with the Tenth District Court of Appeals that these provisions are not facially unconstitutional. Sears, Roebuck & Co. v. Franklin Cty. Bd. of Revision, supra at 10. - 11 - Appellant also complains the failure of the common pleas court to conduct a hearing violates the due process and due course of law guarantees under the United States and Ohio Constitutions, respectively. United States Constitution, Fifth Amendment; Ohio Constitution, Article I Section 16. However, appellant's failure to file a proper motion to supplement the record or otherwise make an effort to submit any evidence precludes appellant from raising this argument on appeal. We note that even if appellant properly preserved and raised this issue, the Ohio Supreme Court has recently rejected appellant's argument that these constitutional provisions require an "oral hearing" in the context of administrative proceedings before the Industrial Commission of Ohio. State, ex rel. Owens- Illinois, Inc. v. Indus. Comm. (1991), 61 Ohio St. 3d 456. We find the Court's reasoning to be persuasive in this context. The record demonstrates appellant was not denied an opportunity to submit additional evidence to the common pleas court. Due process generally does not require the common pleas court conduct an "oral hearing" when a sophisticated party such as appellant represented by counsel specializing in tax matters was afforded an opportunity to submit additional evidence in written form on appellant's behalf. Id. at 460-61. Appellant's failure to submit any such evidence during the five and one half month period when its appeal was pending before the common pleas court, or to request a continuance to enable - 12 - appellant to do so, belies its due process contention. Appellant's failure to take advantage of this opportunity to present additional evidentiary materials does not amount to a denial of due process Id. at 461. Accordingly, appellant's sixth and eleventh assignments of error are overruled. III. Appellant's tenth assignment of error follows: THE COURT OF COMMON PLEAS ERRED IN FAILING TO RULE UPON THE APPELLANT'S MOTION FOR RECONSIDERATION AND REQUEST FOR ORAL ARGUMENT FOLLOWING THEIR DECISION IN THIS APPEAL. Appellant's tenth assignment of error lacks merit. Appellant argues the common pleas court improperly denied its motion for reconsideration and oral argument after the common pleas court rendered its final judgment affirming the decision of the Board. The common pleas court, however, was divested of jurisdiction upon appellant's filing its notice of appeal to the Eighth District Court of Appeals from the final judgment of the common pleas court. App. R. 4; Dempsey v. Chicago Title Ins. Co. (1985), 20 Ohio App. 3d 90, 94. Consequently, the common pleas court lacked jurisdiction to entertain appellant's motion for reconsideration. We further note the Civil Rules do not provide for motions for reconsideration in the common pleas court, therefore, such motion under the circumstances of the case sub - 13 - judice was a nullity. Sears, Roebuck & Co. v. Franklin Cty. Bd. of Revision, supra. Accordingly, appellant's tenth assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, P.J., and PRYATEL,* J., CONCUR (*Judge August Pryatel, Retired, Eighth Appellate District, Sitting by Assignment.) JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. -15- APPENDIX Appellant's eleven assignments of error follow: ASSIGNMENT OF ERROR NO. 1 THE DECISION OF THE COURT OF COMMON PLEAS WHICH AFFIRMED THE DECISION AND ORDER OF THE CUYAHOGA COUNTY BOARD OF REVISION IS UNREASONABLE, UNLAWFUL AND CONTRARY TO THE LAWS OF OHIO. ASSIGNMENT OF ERROR NO. 2 THE FAILURE OF THE COURT OF COMMON PLEAS TO CONDUCT A CASE MANAGEMENT CONFERENCE PRETRIAL, ESTABLISH A SCHEDULE FOR THE FILING OF BRIEFS, OR HAVE ANY CONTACT WITH COUNSEL WHATSOEVER AT ANYTIME PRIOR TO RENDERING A DECISION IN THIS CASE WAS UNREASONABLE, UNLAWFUL AND CONTRARY TO THE LAWS OF OHIO. ASSIGNMENT OF ERROR NO. 3 THE FAILURE OF THE COURT OF COMMON PLEAS TO CONDUCT A HEARING FOR THE SUBMISSION OF ADDITIONAL EVIDENCE ON THE ISSUES IN THE APPEAL WAS UNREASONABLE AND UNLAWFUL AND CONTRARY TO THE LAWS OF OHIO. ASSIGNMENT OF ERROR NO. 4 THE COURT OF COMMON PLEAS ERRED IN RELYING SOLELY ON THE RECORD OF THE HEARING BEFORE THE BOARD OF REVISION IN AFFIRMING THE BOARD OF REVISION DECISION AND ORDER. THE BOARD OF REVISION HEARING WAS NOT A DUE PROCESS HEARING. ASSIGNMENT OF ERROR NO. 5 THE COURT OF COMMON PLEAS ACTED UNREASONABLY AND UNLAWFULLY IN LIMITING ITS REVIEW TO THE RECORD SUBMITTED BY THE BOARD OF REVISION. - 16 - ASSIGNMENT OF ERROR NO. 6 THE COURT OF COMMON PLEAS FAILED TO TAKE EVIDENCE ON THE CONSTITUTIONAL ISSUE OF THE COMMON LEVEL OF ASSESSMENT AS REQUIRED BY THE OHIO SUPREME COURT IN CLEVELAND GEAR CO. v. LIMBACH (1988), 35 OHIO ST. 3D 229. ASSIGNMENT OF ERROR NO. 7 THE COURT OF COMMON PLEAS FAILED TO MAKE A DETERMINATION ON THE ISSUE OF THE COMMON LEVEL OF ASSESSMENT. ASSIGNMENT OF ERROR NO. 8 THE COURT OF COMMON PLEAS FAILED TO ARRIVE AT AN INDEPENDENT DETERMINATION OF VALUE AS REQUIRED BY SECTION 5717.05 OHIO REVISED CODE. ASSIGNMENT OF ERROR NO. 9 THE COURT OF COMMON PLEAS' DECISION FAILED TO VALUE THE APPELLANT'S PROPERTY AT ITS TRUE VALUE IN MONEY AS REQUIRED BY OHIO LAW. ASSIGNMENT OF ERROR NO. 10 THE COURT OF COMMON PLEAS ERRED IN FAILING TO RULE UPON THE APPELLANT'S MOTION FOR RECONSIDERATION AND REQUEST FOR ORAL ARGUMENT FOLLOWING THEIR DECISION IN THIS APPEAL. ASSIGNMENT OF ERROR NO. 11 THE DECISION OF THE COURT OF COMMON PLEAS VIOLATES THE APPELLANT'S RIGHTS OF DUE PROCESS, EQUAL PROTECTION, AND UNIFORMITY OF TAXATION GUARANTEED UNDER THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION. Appellant's five arguments set forth in its brief on appeal follow: ASSIGNMENT OF ERROR I THE COURT OF COMMON PLEAS' DECISION BASED SOLELY ON THIS RECORD BEFORE THE BOARD OF REVISION IS UNREASONABLE, UNLAWFUL AND CONTRARY TO THE LAWS OF OHIO. - 17 - ASSIGNMENT OF ERROR II THE DECISION OF THE COURT OF COMMON PLEAS, FINDING THAT THE ISSUE OF THE COMMON LEVEL OF ASSESSMENT CANNOT BE RAISED IN THE COURT OF COMMON PLEAS IS CONTRARY TO THE LAW IN OHIO, THE FACTS IN THIS APPEAL AND IS UNREASONABLE AND UNLAWFUL. ASSIGNMENT OF ERROR III THE DECISION OF THE COURT OF COMMON PLEAS VIOLATES THE APPELLANT'S RIGHTS OF DUE PROCESS, EQUAL PROTECTION, AND UNIFORMITY OF TAXATION GUARANTEED UNDER THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION. ASSIGNMENT OF ERROR IV THE COURT OF COMMON PLEAS ERRED IN CONCLUDING THAT THE RECORD OF THE HEARING BEFORE THE BOARD OF REVISION PROVIDED A SUFFICIENT BASIS FOR THE DECISION OF THE COURT OF COMMON PLEAS. THE BOARD OF REVISION HEARING WAS NOT A DUE PROCESS HEARING. ASSIGNMENT OF ERROR V THE COURT OF COMMON PLEAS ERRED IN FAILING TO RULE UPON THE APPELLANT'S MOTION FOR RECONSIDERATION AND REQUEST FOR ORAL ARGUMENT FOLLOWING THEIR DECISION IN THIS APPEAL. .