COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67028 PRIME PROPERTIES LIMITED : PARTNERSHIP, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION CUYAHOGA COUNTY BOARD OF : REVISION, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : APRIL 6, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Board of Tax Appeals : Case No. 90-H-378 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Susan M. Lawko LAWKO & LAWKO 11711 Lorain Avenue Cleveland, Ohio 44111 For defendant-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., P.J.: Plaintiff-appellant Prime Properties, Ltd. appeals the decision of the Ohio Board of Tax Appeals. The procedural history of this case is crucial for its determination, and the essential facts are adduced below. The appellant owns a piece of property with the permanent parcel number 101-15-025. On March 30, 1989, the appellant filed its complaint on the assessment of the property. The Board of Revision held a hearing, at which time the taxing authority presented no evidence or testimony. Despite the evidence presented by the appellant in support of its position, the Board of Revision affirmed the original assessment. On March 13, 1990, the appellant filed its appeal with the Ohio Board of Tax Appeals (BTA). An evidentiary hearing was held on March 7, 1991, and on April 5, 1991, the BTA affirmed the decision of the Board of Revision. The appellant filed an appeal to this court, and in Prime Properties Limited Partnership v. Cuyahoga County Board of Revision et al. (February 4, 1993), Cuyahoga App. No. 61761, unreported, this court reversed and remanded. In its decision and order upon remand, the BTA indicated that an inquiry was made of the parties as to whether or not they wished to present additional evidence. The appellant affirmatively declined, and the appellee did not respond. The BTA proceeded to reconsider the evidence already present in the file, and reissued - 3 - the same order as given prior to the appellant's initial appeal. The appellant set forth the following six assignments of error: FIRST ASSIGNMENT OF ERROR: THE DECISION OF THE BOARD OF TAX APPEALS CONSTITUTES THE TAKING OF PROPERTY WITHOUT DUE PROCESS AND IS THEREFORE IN VIOLATION OF AMENDMENT XIV, SECTION 1 OF THE UNITED STATES CONSTITUTION. SECOND ASSIGNMENT OF ERROR: THE BOARD OF TAX APPEALS ABUSED ITS DISCRETION, ACTED UNREASONABLY, UNLAWFULLY, AND ARBITRARILY IN DETERMINING THE VALUE OF THE SUBJECT PROPERTY FOR THE TAX YEAR 1988. THIRD ASSIGNMENT OF ERROR: THE BOARD OF TAX APPEALS' DECISION IS UNREASONABLE AND UNLAWFUL FOR THE REASON THAT DECISION IS CONTRARY TO THE WEIGHT OF EVIDENCE PRESENTED TO THE BOARD OF TAX APPEALS. FOURTH ASSIGNMENT OF ERROR: THE DECISION OF THE BOARD OF TAX APPEALS IS UNREASONABLE AND UNLAWFUL AND CONTRARY TO THE LAWS OF OHIO AND THE OHIO CONSTITUTION. FIFTH ASSIGNMENT OF ERROR: THE DECISION OF THE BOARD OF TAX APPEALS VIOLATES ARTICLE XII, SECTION 2 OHIO CONSTITUTION THAT PROPERTY SHOULD BE BY "UNIFORM RULE." SIXTH ASSIGNMENT OF ERROR: THE DECISION OF THE BOARD OF TAX APPEALS VIOLATES THE RIGHT OF "EQUAL PROTECTION" UNDER ARTICLE I, SECTION I, AND ARTICLE II, SECTION 26 OHIO CONSTITUTION AND AMENDMENTS IV, SECTION I UNITED STATES CONSTITUTION. In the prior appeal, this court addressed the identical assignments of error. Under the doctrine of the law of the case, the appellant is precluded from relitigating these issues. This - 4 - court set forth the applicable law on the doctrine of the law of the case in City of North Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173: [14, 15] The doctrine of the law of the case provides that a decision of a reviewing court remains the law for that case as to all relevant legal questions in subsequent proceedings both at trial and appellate levels unless that rule of practice achieves an unjust result. Weir v. Kebe (1985), 29 Ohio App.3d 53, 29 OBR 62, 503 N.E.2d 177. The rule ensures consistency in the results of the case, avoids excessive litigation, and preserves the structure of superior and inferior courts as designed by the Ohio Constitution. Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1, 2, 462 N.E.2d 410, 412. The rule was created because of the necessity of a trial court to obey the mandate of a reviewing court upon a retrial of a case. Gohman v. St. Bernard (1924), 111 Ohio St. 726, 731, 146 N.E. 291, 292. It applies upon remand from a reviewing court, when a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal. Hawley v. Ritley (1988), 35 Ohio St.3d 157, 519 N.E.2d 390. In the case sub judice, the BTA in its decision and order of February 18, 1994 explained why it reaffirmed its original decision. The BTA misconstrued this court's order when it found that this court desired the BTA to "re-examine and re-weigh the evidence that was before the Board of Revision". Such was not the case. This court held that the decision of the BTA was unreasonable, vacated the decision of the BTA, and reversed and remanded for rehearing. We held that the rehearing should be "based upon evidentiary standards and not simply conjecture." Evidently the BTA had difficulty comprehending this language, and chose instead to embark on its own remedial journey. This court said, in effect, that since the BTA rejected the property - 5 - owner's appraisal, and since no independent appraisal was submitted by the county at either hearing, the BTA could not adopt the county's valuation because it had no evidence of the value of the property or methodology used in arriving at that value. It is not enough for the BTA to say that the property is "obviously 'income' property"; that "we think the Income Approach is an appropriate valuation approach for this property"; and that "It really requires not even an Income Approach, just common sense". The BTA held that the county must have used the income approach to arrive at value without any evidence to support that determination. This court found there to be insufficient evidence to support the decision, and remanded to allow the taxing authority to present evidence in support of their assessment. They failed to do so. If this court committed error, the law allows for an appeal by the parties to be submitted to the Ohio Supreme Court. Instead, the BTA issued the same order, based upon the same dearth of evidence to support its conclusions. This action is contra to every notion of jurisprudence upon which our system stands. Based upon the doctrine of the law of the case, we find that the appellant's first, fifth and sixth assignments of error to be without merit, and uphold the appellant's second, third and fourth assignments of error. Judgment is reversed and remanded for hearing. The BTA is directed to hold a hearing within 90 days of the receipt of this - 6 - opinion. If, upon notification to both parties, the County Prosecutor's Office again fails to submit an appraisal report demonstrating, inter alia, the methodology used in their determination of value, then this court holds that the BTA Shall accept the values as indicated in the uncontested property owner's appraisal report. - 7 - This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court 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. BLACKMON, J., CONCURS; O'DONNELL, J., DISSENTS, WITH DISSENTING OPINION ATTACHED. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67028 : PRIME PROPERTIES LIMITED : PARTNERSHIP, : : DISSENTING Plaintiff-Appellant : : OPINION vs. : : : CUYAHOGA COUNTY BOARD OF REVISION : : : Defendant-Appellee : : DATE: APRIL 6, 1995 O'DONNELL, J., DISSENTING: The County Auditor is charged with the responsibility to "*** determine, as nearly as practicable, the true value of each separate tract *** of real property ***." See R.C. 5713.03. That was done in this case. I disagree with the censure of the Board of Tax Appeals by my colleagues in the majority opinion. In this case, appellant, Prime Properties objected to the Auditor's determination of $18,940 as assessed valuation of this real estate and timely appealed to the Board of Revision claiming a tax value of $5250. The Board of Revision determined assessed value to be $18,940 - 2 - thus denying any reduction. Appellant then chose to appeal to the Board of Tax Appeals but failed to appear at the March 7, 1991 hearing or to present any evidence to that Board. On April 5, 1991, the Board of Tax Appeals noted that it was the taxpayers' burden to produce competent evidence to challenge the determination of the Board of Revision and then found the taxable value to be $18,940. Appellant then filed its first appeal to this court and the matter was remanded to the Board of Tax Appeals for rehearing. The February 18, 1994 decision and order of the Board of Tax Appeals reflects that "*** Appellant had no additional evidence to present, did not desire that the matter be reheard, and wanted the case on remand to be decided on the basis of what was already in the record. Appellees did not respond to the Board's letter." The Board of Tax Appeals, after giving full consideration to the totality of the evidence presented, found the taxable value of the property for tax year 1988 to be $18,940. Appellant then filed this, his second appeal to our court and has assigned the same errors as presented in the first appeal. The law is that one who appeals from the valuation of real property to the Board of Tax Appeals bears the burden of proof to establish the fair market value of the property. In RRZ Associates v. Bd. of Revision (1988), 38 Ohio St.3d 198, the court noted "Appellant had the duty to prove its right to a reduction in value. Western Industries, Inc. v. Hamilton Cty. Bd. of Revision (1960), 170 Ohio St. - 3 - 340, 342, 10 O.O. 2d 427, 161 N.E. 2d 741, 743; Rollman & Sons Co. v. Bd. of Revision of Hamilton Cty. (1955), 163 Ohio St. 363, 56 O.O. 337, 127 N.E. 2d 1, paragraph one of the syllabus; Hibschman v. Bd. of Tax Appeals (1943), 142 Ohio St. 47, 48, 26 O.O. 239, 240, 49 N.E. 2d 949, 950. See also Van Curen v. Cuyahoga County Bd. of Revision (1983), BTA 80-F-465, and Bruno v. Montgomery County Bd. of Revision (1981), BTA 79- B-315." My view is that the appellant has not met its burden of proof before the Board of Tax Appeals and this court now seeks to have the burden of proof shifted to the appellee to present evidence to the Board of Tax Appeals. This is not in conformity with any of the controlling cases cited in this dissent. I also cannot agree that the majority can exercise discretion for the Board of Tax Appeals by ordering, "the BTA shall accept the values as indicated in the uncontested property owner's appraisal report." At best, the matter can be remanded for an additional hearing without any further instructions of our court. My impression is to affirm the decision of the Board of Tax Appeals. .