Ohio Supreme Court Upholds Broad Discretion of BTA in the Valuation of Real Property

On October 27, 2016, the Ohio Supreme Court (the court) issued its decision in Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, Slip Opinion no. 2016-Ohio-7466, which stemmed from an appeal of a Board of Tax Appeal (BTA), no. 2011-3590. The court’s decision involved  real property valuation case and concerns the proper valuation of a 240-unit apartment complex in Northeast Franklin County for tax year 2005.

The property at the center of this case was originally valued at $13,600,000 and the property owner sought a reduction in the valuation t $9,720,000. The Board of Revision (BoR) ultimately adopted (in a 2-1 vote) a valuation of $9,338,000 proposed by an MAI certified appraise. The BTA affirmed the BoR decision.

The board of education (BoE) appealed arguing that the absence of market data and other flaws in the appraisal made it unreasonable and unlawful for the BoR and BTA to accept the appraisal.

There are 3 approaches used in appraising property—income, cost and sales comparisons.  For an income producing property, the income stream is critical for determining its value. When a property is new, the cost basis of the property may make more sense. Because the variables affecting each property, such as unit size, floor plans, amenities, access to transportation, etc. differ so much from one property to the next, sale comps may have limited utility.

The appraiser in this case relied primarily (but not exclusively) on the income stream produced by the property. It was a newly constructed property so the appraiser averaged the 2004 and 2005 numbers since the property was leased up by 2005. He reasoned that an arm’s length purchase price would typically be based upon the income stream and therefore a more accurate valuation should rely on the income approach.  The appraiser also looked at 10 sales comparisons, taking into consideration the range of cap rates an price per unit to serve as a check on his estimated value and to determine the best cap rate to use in his income valuation.

The BoE objected and the case advanced to the court where the BoE advanced the following proposition of law: “An appraisal that fails to include relevant market data and the specific adjustments made thereto is inherently unreliable and cannot be used to determine the true value of real property for tax purposes.” It argued that the BTA erred is relying on the appraisal because the report did not include sufficient data under its market and income approaches and further did not include a cost approach, all of which was unlawful. It should be noted that additional data was provided by the appraiser in testimony.

When tax appeals come before the court, it is often held that when the court reviews the BTA’s disposition of the factual issues in a property valuation case, the court “does not sit either as a super BTA or as a trier of fact de novo.” The BTA is given wide discretion in determining the weight to give evidence and the credibility of witnesses before it. The BoE in its appeal must demonstrate that the BTA’s and BoR’s weighing of evidence and the force it applied to such evidence was unreasonable or unlawful, and the standard the BoE must meet is that the BTA and BoR abused their discretion. This is a difficult standard to meet. It means that the BoE must prove that the BTA exhibited an unreasonable, arbitrary or unconscionable attitude.

The court found that while the BoE pointed to matters that definitely relate to the probative force of the appraisal, it failed to establish unlawfulness or an arbitrary or unconscionable attitude on the part of the BTA in adopting the appraisal.

During testimony, the appraiser provided his reasons for using the approach that he did and for why he did not use the cost approach. It was in within the discretion of the trier of fact, i.e., the BoR and the BTA, to credit the appraiser’s testimony and report.

When evaluating the merits of whether to appeal the decision of the BTA in a property valuation, we need to keep in mind that the court will not disturb the BTA’s decision merely because a different expert might have found merit in using another approach.

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When Baseball is a Bone Breaking vs. a Heart Breaking Experience, who is Responsible?

By: Stephen D. Richman, Senior Counsel-Kohrman, Jackson & Krantz, PLL

While a good deal of the heartbreak from our beloved Cleveland Indians just missing another World Series victory is behind us, some fans have had more than their hearts break as a result of an Indians baseball game.

In the recent case of Rawlins v. Cleveland Indians Baseball Co., Inc., 2015 Ohio 4587 (Cuyahoga County) the Eighth District Court of Appeals was faced with the question of whether the owner of property (the Cleveland Indians) was liable for injuries sustained by Keith Rawlins during an Indians baseball game.

Besides being “die hard Indians fans,” this article is in our real estate blog because it deals with the general issue of “premises liability”. Generally, in Ohio, all property owners/occupants are responsible for maintaining safe conditions for the people visiting their property and can be held liable for certain injuries on their property. The degree of responsibility (“duty of care”) depends on multiple factors, most notably who has entered on to the land, be it a social guest/invitee, a licensee, or a trespasser.  The duty of care might be as easy as posting a sign, and as costly as re-paving a parking lot to change its grade.

Of course, there are always exceptions to the general rule, and this holds true with regard to premises liability.

One such exception worthy of discussion is the one at issue in the Rawlins case, known as “the Baseball Rule.” The Baseball Rule is actually the name for the more recognizable defense to premises liability negligence claims (i.e., primary assumption of the risk) in sporting event situations. Under this doctrine, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in such activity unless the defendant acted recklessly or intentionally in causing the injuries. Injury claims resulting from a foul ball at a baseball game, tripping on a root during a nature night hike, or from a roller skating collision are examples of negligence claims which could be effectively barred by the defense of assumption of the risk.

Are there exceptions to the exception? Are there specific circumstances caused by the property owner that call into question whether or not the injured party truly assumed the risk?

These were the basic issues presented to the Eighth District Court of Appeals in Rawlins.

The facts of the case are as follows: In July of 2012, Keith Rawlins bought tickets for himself and his daughter to the Indians game against Baltimore. It was a night game, with a fireworks show scheduled for after the game. The tickets Rawlins purchased were for seats located on the third-base side of the field in Section 171 and, therefore, were subject to closure for the post-game fireworks show. In his complaint, Rawlins alleged that at the top of the ninth inning, an usher ordered them to immediately vacate their seats. In a later deposition, however, Rawlins testified that an usher came to the end of the row where he and his daughter were seated and “just stood there with her arms folded” “or hands on her hips” and stared at him, seemingly delivering a message to move. Nevertheless, when Rawlins and his daughter left their seats at the top of the ninth inning, Mr. Rawlins was struck by a foul ball. Rawlins maintained that the accident occurred because they were ordered out of their seats due to the post-game fireworks show.

In November, 2013, Rawlins filed a negligence action against the Cleveland Indians as a result of injuries Rawlins sustained after he was hit by the foul ball. In November, 2014, the Cleveland Indians filed a motion for summary judgment (basically, this is a request for an early dismissal of an action based on law), contending that the action was barred by the defense of primary assumption of the risk. In January, 2015, the trial court granted the Cleveland Indians’ motion for summary judgment. Rawlins then appealed to the Cuyahoga County Court of Appeals.

Rawlins argued that the doctrine of primary assumption of the risk does not apply when there are attendant circumstances caused by the property owner that are not inherent to the game of baseball. Rawlins claimed that the order to move out of their seats constituted the attendant circumstances.

In arriving at its decision to overrule the trial court’s decision of summary judgment in favor of the Cleveland Indians, the court in Rawlins first analyzed cases that applied the general rule and supported the position of the Indians, namely, that “baseball is an inherently dangerous activity and that the spectator is in the best position to protect him or herself from injury at a baseball game.” According to the Rawlins court, “The consensus of … opinions is to the effect that it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof. This theory is fortified by the fact that such spectators can watch the ball and can thus usually avoid being struck when a ball is directed toward them.”

The court in Rawlins, however, also analyzed a prior Supreme Court of Ohio decision (that it believed dispositive of the Rawlins case) that seemingly establishes an exception to the “primary assumption of the risk rule”. That case is Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925). In Eno, the spectator was injured by a baseball during the intermission of a double-header that was hit by a player practicing near the unscreened portion of a stadium grandstand. The Ohio Supreme Court concluded that the facts in Eno presented a materially different situation from the general rule, and that there was a question of fact whether the stadium owner was responsible for allowing players to practice in close proximity to the grandstand during an intermission when the scheduled games were not being played.

Citing other Ohio Supreme Court decisions that followed Eno, the court in Rawlins also recognized that “In many situations, as in Eno, there will be attendant circumstances that raise questions of fact whether an injured party assumed the risk in a particular situation.”

The Cleveland Indians disagreed with Rawlins’s attendant circumstances theory. The ball club contended that fireworks shows are a common phenomenon of modern baseball, and introduced precedent in the form of a Second Appellate District case that held that even though a patron was distracted by a mascot when the patron was hit by a foul ball, mascots are part of, and inherent to baseball and accordingly, the patron still had a duty to be vigilant.

In overruling the trial court, the court in Rawlins agreed that there is an exception to the primary assumption of the risk doctrine (as applied in the Eno case), however, it held that whether or not the Indians did in fact order Mr. Rawlins from his seat, and whether or not the order to relocate because of the fireworks was an attendant circumstance not inherent to baseball were questions of fact that would need to be heard by the trial court.

In other words, based upon the holding in Rawlins, “under the assumption of the risk doctrine, the sponsor of a sporting event has a duty “‘not to increase the risk of harm over and above the inherent risk of the sport,’” and whether or not the risk of harm is so increased is a genuine issue of fact.

So what is the moral of this story? Simply remember that hot coffee is hot, a fish entrée is bound to include bones, and baseballs are bound to be flying overhead during a baseball game, which in the 21^st century includes mascots, fireworks and hopefully more World Series games for the Cleveland Indians.

Watch your Language with Oil and Gas Leases in Ohio

By: Stephen D. Richman-Senior Counsel at Kohrman, Jackson & Krantz, PLL

As established in other “Watch Your Language” articles for this Blog, as a general rule, courts will uphold language in commercial agreements, unless it is contrary to statutory law or public policy. Because of this judicial deference to “commercial language”, you must say what you mean, precisely, or a judge will decide what you meant. Compounding the problem is the fact that courts typically refuse to consider extrinsic evidence of a party’s intent (offered by such party) if they determine the contract language is clear and unambiguous. What is said within the “four corners of an agreement” is simply deemed the best evidence of intent.  

The Ohio Supreme Court in Lutz v. Chesapeake Appalachia, L.L.C., Slip Opinion No. 2016-Ohio-754 recently espoused this basic tenet of Ohio law in regards to oil and gas leases.

Lutz v. Chesapeake came to the Ohio Supreme Court in a different manner than most cases. Frequently, a trial court decision in Ohio gets appealed to an Ohio court of appeals, and that decision may then be appealed to the Ohio Supreme Court. In Lutz, the case originated in the United States District Court for the Northern District of Ohio (Eastern Division), and then this federal court certified a question of law to the Supreme Court of Ohio pursuant to Ohio S.Ct.Prac.R. 9.01. A certified question is a formal request by one court to another for an opinion on a question of law.

The question of law the U.S.District Court wanted answered, was in an oil and gas lease, when figuring royalty payments due the landowner, “Does Ohio follow the ‘at the well’ rule (which permits the deduction of post-production costs [before royalty payments are calculated]) or does it follow some version of the ‘marketable product’ rule (which limits the deduction of post-production costs under certain circumstances)?”

The Ohio Supreme Court in Lutz respectfully declined to answer the question of law before it, basically because the court had no unique, broad oil and gas law for the U.S. District Court to apply to all oil and gas leases; rather, its holding would depend much more on facts and general contract (interpretation) law.

The facts of the case are as follows: The respondents, Regis and Marion Lutz, Leonard and Joseph Yochman, and C.Y.Y., L.L.C., the landowner-landlords claimed that petitioner, Chesapeake Appalachia, L.L.C., the tenant-oil and gas company, underpaid gas royalties under the terms of their leases. No one disputed that the oil and gas company needed to pay for all the production costs (i.e., the costs of producing the gas from below the ground and bringing it to the wellhead) incurred. The dispute centers on “postproduction costs”(such as the cost to gather, process and compress the gas, the cost to transport the gas and other costs incurred after the gas is produced at the wellhead and before it is sold). Specifically, the issue is whether or not postproduction costs should be deducted from the sale price of gas before royalty payments to the landowner are calculated. The language of the leases specifies that royalties are to be paid based on “market value at the well” and on the “field market price.”

The oil and gas company argued that the plain language of the leases controls and that since the leases specify that the  royalty is based on the value of the gas at the well, any postproduction costs would need to be deducted from the sale price to arrive at the well price before the royalty percentage can be calculated. The landowners claimed that there is no real market at the well, so the oil and gas company “has an implied duty to market the product once it leaves the wellhead, and therefore the lessee must bear the cost of bringing the product to the market and not deduct the costs before calculating the royalty.”

The Ohio Supreme Court declined to answer the U.S. District Court’s question, basically because it was the wrong question. The Supreme Court of Ohio concluded that there is no specific rule of law particular to oil and gas prices at the well head vs. afterwards. Instead, the law to be applied in this case would be the traditional rules of contract construction, because according to the court, an oil and gas lease is basically, a contract. Specifically, the court stated that the law to be applied should be the “well-known and established principle of contract interpretation that [c]ontracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contract language.”  

It will have to be the U.S. District Court, however to apply the law in this case, because the case was dismissed by the Ohio Supreme Court. The court explained that if the contract (lease) language is ambiguous, they cannot look to intent because there was no extrinsic evidence brought before their court. Alternatively, the Supreme Court of Ohio reasoned that if the lease language is not ambiguous, then the federal court should have no trouble interpreting the leases without its assistance.

What is the moral of this story? The only thing clear about Lutz v. Chesapeake (other than there being no specific rule of law in Ohio re: deduction of post production costs when calculating oil and gas royalties) is the need to be clear when drafting oil and gas leases. If the parties had specified exactly what costs are to be deducted when determining gas prices and calculating royalties, there would have been no need for litigation, and no worry regarding what  a judge will decide they meant.