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Cummins Property Services, LLC, Franklin County Board of Revision, Franklin County Auditor v. Worthington City Schools Board of Education, Case no. 2007-0195
State Board of Tax Appeals
The Office of the Ohio Consumers' Counsel v. The Public Utilities Commission of Ohio, Case no. 2007-0570
The Office of the Ohio Consumers' Counsel v. The Public Utilities Commission of Ohio, Case no. 2007-0659
Butler County Bar Association and Disciplinary Counsel v. Clifford Scott Portman, Case no. 2007-1570
Cleveland Bar Assocation v. Luann Mitchell, Case no. 2007-1581
Is Recent Sale Price of Property Presumed To Be Tax Value Unless County Proves Higher Valuation?
Cummins Property Services, LLC, Franklin County Board of Revision, Franklin County Auditor v. Worthington City Schools Board of Education, Case no. 2007-0195
State Board of Tax Appeals
ISSUE: When a county auditor has assigned a tax value to a parcel of real property that is higher than the price for which that property was sold in a recent arm's-length transaction, and the property owner appeals the higher valuation, does the Board of Tax Appeals err in accepting the recent sale price as the presumptive true tax value, and in placing the burden of proof on the taxing authority to establish grounds for a higher valuation?
BACKGROUND: This case involves the tax valuation of a parcel of real property near the intersection of U.S. Rte. 23 and Lazelle Road in Worthington. The property, consisting of .63 acres occupied by a one-story commercial building of approximately 3,000 square feet, was formerly occupied by a branch bank. After the building was vacant and for sale for approximately four years, it was purchased by Cummins Property Services LLC in August 2002 for $385,000. Cummins subsequently applied for building permits and began remodeling the building for use as a medical office.
The Franklin County auditor valued the property as of the tax lien date for the 2003 tax year (Jan. 1, 2003) at $530,000. Cummins appealed that valuation to the Franklin County Board of Revision (BOR), which declined to reduce the auditor's valuation. Cummins subsequently appealed the BOR ruling to the State Board of Tax Appeals (BTA). The Worthington City School District, within which the property is located, opposed Cummins' appeal. At a hearing before the BTA, Cummins produced evidence that it had paid $385,000 for the property in August 2002, and cited recent Supreme Court of Ohio decisions holding that when a property has been the subject of a recent arm's-length sale, the sale price should be presumed to be the true value of the property for tax purposes. In the absence of any testimony or factual evidence presented by Worthington Schools in support of a higher valuation, the BTA reversed the BOR and valued the property at the $385,000 sale price Cummins paid for it.
The school district has exercised its right to appeal the BTA's ruling to the Supreme Court. Its attorneys argue that the BTA erred in holding that the August 2002 sale price must be presumed to be the true tax value of the property because: 1) Cummins admitted at the BTA hearing that it had made improvements to the building between the sale date and the Jan. 1, 2003, tax lien date, thus eliminating the presumption that the value was unchanged since the date of sale; and 2) Cummins also admitted that the $385,000 it paid for the property did not cover full ownership rights because it had agreed to a deed restriction barring use of the property as a bank or ATM location for 15 years. Because the sale price did not convey full control of the property, they argue, the BTA should not have adopted that price as the presumed full value but should rather have begun with a presumption that the auditor's valuation of $530,000 was accurate, and required Cummins to prove by evidence that a lower valuation was appropriate.
Attorneys for Cummins ask the Court to follow its earlier decisions holding that a recent sale price is to be presumed the correct tax valuation, and requiring a party seeking a higher valuation to bear the burden of proof. They assert that, because Worthington Schools did not present evidence before the BTA showing that any improvements made to the property before Jan. 1, 2003, increased its value as of that date, or that the minor deed restriction accepted by Cummins subtracted anything from the actual market value of the property, the Court should affirm the BTA's ruling setting the 2003 tax value at the August 2002 sale price of $385,000.
Contacts
Mark H. Gillis, 614.228.5822, for
the Worthington City Schools Board of Education.
Wayne E. Petkovic, 740.362.7729, for Cummins Property Services LLC.
Did PUCO Err in Granting Cincinnati Bell ‘Alternative Regulation’ of Basic Phone Service?
The Office of the Ohio Consumers' Counsel v. The Public Utilities Commission of Ohio, Case no. 2007-0570
ISSUE: Did the Public Utilities Commission of Ohio (PUCO) exceed its authority in granting the Cincinnati Bell Telephone Company's (CBT) application for “alternative regulation” of its billing rates for basic telephone service customers in the company's Cincinnati and Hamilton exchange areas when no local competitor offered stand-alone basic phone service without additional “bundled” services, and no competitor offered guaranteed facilities-based service to all residents of those exchange areas?
BACKGROUND: In 2005 the General Assembly adopted legislation allowing the state's traditional telephone utility companies, whose rates for basic home phone service were subject to mandatory review and approval by the PUCO, to apply for “alternative regulation” status which would exempt future changes in their basic phone service rates from PUCO approval. The revised statute authorized the commission to grant such an application if it found that granting alternative regulation status for a service was in the public interest and either: a) the company was “subject to competition” with respect to the deregulated service or b) the company's customers had “reasonably available alternatives” for the deregulated service. The statute set a maximum yearly increase that a phone company subject to alternative regulation could charge its customers for basic service of $1.25 per month.
In August 2006 the PUCO adopted new rules defining the circumstances under which a telephone company's basic phone service in a given exchange area would qualify as “subject to competition,” and therefore be eligible for a grant of alternative regulation status. CBT immediately applied for alternative regulation status of its basic local phone service in the Cincinnati and Hamilton areas. A number of consumer groups including the state's Office of Consumers' Counsel (OCC) filed objections to the CBT application. Following a review of the parties' written pleadings and a public hearing, the PUCO ruled that phone services offered by five wireless companies and two broadband companies to customers in the Cincinnati and Hamilton areas met the statutory “subject to competition” requirement, and therefore granted CBT's application. Shortly after its application was granted, CBT increased its charge for basic phone service in the Cincinnati and Hamilton exchange areas by the statutory maximum of $1.25 per month.
The OCC has appealed the PUCO ruling granting alternative regulation of CBT's basic phone service rate to the Supreme Court.
Among multiple arguments advanced by the OCC, its attorneys contend that none of the wireless and broadband telephone service providers cited in the commission's decision provide “competitive” basic telephone service comparable to that provided by CBT. They point out that none of the other providers offer stand-alone residential phone service without requiring customers to also pay monthly fees for additional “bundled” services (e.g., flat-rate long distance, call-waiting, call-forwarding, voice mail, etc.) . While the full cost to customers of CBT's stand-alone basic phone service prior to recent increases was $22 to $23 per month, OCC asserts, the lowest-priced “bundle” of services available to a customer seeking minimum service from any of its competitors was from 52 to 72 percent higher for the broadband providers and from 159 to 250 percent higher for the wireless providers. They argue that the PUCO finding that these more expensive bundled services were “competitive,” or that they offered CBT's customers a “reasonably available alternative” to CBT's basic service plan was plainly in error – and that the commission's grant of alternative regulation based on that finding must therefore be reversed.
Attorneys for the PUCO and Cincinnati Bell, which was granted leave to intervene as an interested party, assert that legislative changes enacted in 2005 specifically authorized “alternative regulation” of basic telephone service rates in Ohio and empowered the PUCO to adopt standards of competition which, when met in a local service area, would support relaxation of regulatory restrictions and allow the free market to set fair rates for basic telephone service. The PUCO contends that it followed statutory and procedural requirements in adopting the rules under which CBT's application for alternative regulation of basic service rates was considered and approved. They note that the legislature did not require that a competitor's service must be identical to that offered by a regulated utility in order to provide a competitive marketplace, but merely that a sufficient number of other local providers offer “functionally equivalent” or “substitute” products and services.
In this case, they assert, the PUCO acted within its authority and discretion in determining that bundled services offered to Cincinnati and Hamilton residents by other local broadband and wireless phone providers were sufficiently similar to CBT's basic phone service to provide a competitive marketplace.Contacts
David C. Bergmann, 614.466.8574, for
the Office of Ohio Consumers' Counsel.
William L. Wright, 614.466.4396, for the Public Utilities Commission of Ohio.
Did PUCO Err In Granting AT&T ‘Alternative Regulation’ Of Basic Phone Service?
The Office of the Ohio Consumers' Counsel v. The Public Utilities Commission of Ohio, Case no. 2007-0659
ISSUE: In this case, the Office of Consumers' Counsel challenges a 2006 ruling by the Public Utilities Commission which granted an application by AT&T for “alternative regulation” of the company's basic telephone service rates in 136 local exchange areas across the state.
NOTE: Although it will be argued separately, this case involves the same legal issues and arguments raised in the preceding case. (See discussion above). The attorneys representing the OCC and PUCO, who may be contacted for additional information, are the same in both cases.
Attorney Discipline
Butler County Bar Association and Disciplinary Counsel v. Clifford Scott Portman, Case no. 2007-1570
The Board of Commissioners on Grievances & Discipline has recommended that attorney Clifford S. Portman of Hamilton be permanently disbarred for accepting fee advances from four different clients but subsequently performing no legal services on their behalf, failing to respond to repeated communications from the clients, making false statements and representations about his actions and failing to refund their unearned fees despite repeated requests to do so.
In addition to the above violations, the Board also found that in another case Portman falsified an application for appointed counsel fees that he filed with the Butler County Court of Common Pleas, certifying that he had received no compensation from an indigent criminal defendant when in fact he had solicited and received payments totaling $1,000 from the client and his mother.
Portman, who failed to respond to multiple contacts from disciplinary authorities and was ultimately prosecuted by means of default proceedings, has filed a motion to supplement the record in which he asks the Court to take note that he has recently made restitution to the four clients whose cases he neglected and to Butler County for his fraudulently obtained appointed counsel fee. He also states that he has initiated contact with the Ohio Lawyers Assistance Program in order to enter into a treatment contract for a mental disorder that he claims contributed to his earlier neglect and other misconduct, and asks the Court to impose an indefinite suspension of his law license rather than permanently revoking it.
Contacts
Richard A. Hyde, 513.892.8251, for
the Butler County Bar Association.
Alvin E. Mathews Jr., 614.227.2312, for Clifford S. Portman.
Attorney Discipline
Cleveland Bar Assocation v. Luann Mitchell, Case no. 2007-1581
The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Luann Mitchell be suspended for 18 months, with 12 months of that term stayed on conditions, for multiple violations of state attorney discipline rules over a period of several years arising from her actions in the case of a deceased former client.
The board found that Mitchell engaged in a pattern of conduct prejudicial to the administration of justice and conduct involving fraud, deceit, dishonesty or misrepresentation by repeatedly failing to appear for scheduled depositions and court proceedings or to provide subpoenaed documentation in a case involving a client's claims for Medicaid reimbursement. The board also found that, in attempting to recover more than $30,000 in claimed expenses for her client during a period in which the client had been disenrolled from a Medicaid-supported home health program, Mitchell filed multiple unmeritorious and harassing lawsuits in various Cuyahoga County courts against the Western Reserve Area Agency on Aging (WRAAA), eventually resulting in an award to WRAAA of court-ordered sanctions against Mitchell of $28,000 that has never been satisfied.
Mitchell argues that she did provide available documentation of her client's expenses to attorneys representing WRAAA, and that the series of court actions she filed against the agency were consistent with her ethical duty to zealously pursue through every available legal channel recovery of monies to which her former client and the client's estate were entitled. She asserts that her conduct was not in violation of the cited disciplinary rules, and asks the court to dismiss the charges brought against her.Contacts
Sheila A. McKeon, 419.241.4860, for
the Cleveland Bar Association.
Luann Mitchell, pro se, 216.486.0024.
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.