COURT OF APPEALS

DECISION

DATED AND FILED

 

March 13, 2013

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.If published, the official version will appear in the bound volume of the Official Reports.

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.See Wis. Stat. ß 808.10 and Rule 809.62.

 

 

 

 

Appeal No.

2012AP768

Cir. Ct. No.2010CV1395

STATE OF WISCONSIN

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

Kohl's Department Stores, Inc. and

Kohl's Value Services, Inc.,

 

††††††††† Plaintiffs-Appellants,

 

†††† v.

 

City of Neenah,

 

††††††††† Defendant-Respondent.

 

 

 

 

††††††††††† APPEAL from a judgment of the circuit court for Winnebago County:THOMAS J. GRITTON, Judge.Affirmed.

††††††††††† Before Brown, C.J., Neubauer, P.J., and Gundrum, J.

1††††††† PER CURIAM.   Kohlís Department Stores, Inc., appeals from a judgment denying its claim to recover excess taxes paid to the City of Neenah after the trial court determined that Kohlís failed to overcome the statutory presumption in favor of the Cityís assessment.Kohlís argues that the Cityís assessment was not entitled to receive the presumption of correctness because: (1) the City abandoned its assessment by failing to call the assessor as a witness at trial; and (2) the City rejected its assessment by calling an expert witness that appraised the property at a higher value.In the alternative, Kohlís argues that it rebutted the presumption in favor of the Cityís assessment through the testimony of its own expert witness.We conclude that the City was not required to call the assessor at trial and that its assessment was entitled to a presumption of correctness.We also uphold the trial courtís findings of fact and conclude that Kohlís failed to offer sufficient credible evidence to overcome the statutory presumption.

2††††††† Kohlís leases and operates a department store in the City of Neenah.For the tax year 2009, the City assessed the property at $7,538,000 and Kohlís filed an objection. At an open book review, the City assessor reduced the amount to $6,992,400.In 2010, the property was again assessed at $6,992,400.Kohlís appealed to the City board of review and the board sustained both yearsí assessments.After timely paying its taxes, Kohlís filed a claim for excessive assessment in the trial court, seeking a refund of the alleged overpayment.See Wis. Stat. ß 74.37. [1]

3††††††† At the court trial, Kohlís called appraiser S. Steven Vitale as an expert witness.Vitale testified that the property had a value of $5,210,000 in 2009, and $4,950,000 in 2010.The City introduced exhibits from the boardís review hearing, including the original assessment, the assessorís methodology and calculations, and the open book review notes.The City also presented portions of the Wisconsin Property Assessment Manual for Wisconsin Assessors and called its own expert, appraiser Daniel R. Furdek, who testified that the property had a value of $7,800,000 in 2009, and $7,900,000 in 2010.

4††††††† The trial court concluded that Vitaleís appraisal was unpersuasive and explained its reasons for rejecting each of Vitaleís three valuation analyses.The court found that Vitaleís cost approach factored in an economic obsolescence percentage that was ďvery difficult to believe,Ē that his sales approach considered incomparable properties, and that his income approach involved incomplete accounting and square footage numbers that were ďway off.ĒBased on these findings, the trial court concluded that Kohlís had failed to rebut the statutory presumption in favor of the Cityís $6,992,400 assessment.[2]

5††††††† For taxation purposes, real property is to be valued by the assessor ďin the manner specified in the Wisconsin property assessment manual.ĒSee Wis. Stat. ß 70.32(1).The assessorís value is ďpresumptive evidenceĒ of an equitable and correct assessment.See Wis. Stat. ß 70.49(2); Bloomer Hous. Ltd. Píship v. City of Bloomer, 2002 WI App 252, ∂11, 257 Wis. 2d 883, 653 N.W.2d 309.A dissatisfied party may appeal the boardís determination by bringing an excessive tax assessment claim in the trial court under Wis. Stat. ß 74.37(3)(d).The trial court independently reviews the excessive tax claim and may hear new evidence not considered by the board.Nankin v. Village of Shorewood, 2001 WI 92, ∂25, 245 Wis. 2d 86, 630 N.W.2d 141.However, the trial court is required to give presumptive weight to the Cityís assessment.Adams Outdoor Adver., Ltd. v. City of Madison, 2006 WI 104, ∂25, 294 Wis. 2d 441, 717 N.W.2d 803.The taxpayer has the burden to present ďsignificant contrary evidenceĒ in order to overcome the presumption.Bloomer Hous, 257 Wis. 2d 883, ∂11.

6††††††† On appeal, the trial courtís findings of fact will not be overturned unless clearly erroneous.Id., ∂12.Where there is conflicting testimony, the weight and credibility afforded the opinions of expert witnesses is a determination for the trial court.Id.The reviewing court must also give presumptive weight to the Cityís assessment.Adams, 294 Wis. 2d 441, ∂25.

7††††††† The trial court denied Kohlís refund request because it rejected the opinion of its expert witness and concluded that Kohlís failed to rebut the Cityís presumptively correct assessment.On appeal, Kohlís does not contend that the trial courtís factual findings were clearly erroneous. Rather, Kohlís attempts to persuade us that the well-established statutory presumption favoring the Cityís assessment should not apply in this case.To this end, Kohlís first contends that the City was required to present the assessorís testimony at trial and that by failing to do so, the City ďabandoned the presumption.Ē††

8††††††† We reject Kohlís argument that because the assessor did not testify at the court trial, ďno evidence was introduced by Neenah in support of the Assessments.ĒFirst, the City presented the boardís record which included documentation of the assessorís valuation using the cost approach, income approach, and sales comparison approach.The Cityís assessment and supporting documentation were entered into evidence without objection.[3]Additionally, Kohlís stipulated on the record to the amount of the Cityís assessment.[4]††

9††††††† Second, Kohlís has not provided any authority for the proposition that the assessor must testify at trial before the statutory presumption can be applied.[5]The City, on the other hand, points us to State ex rel. North Shore Development Co. v. Axtell, 216 Wis. 153, 157, 256 N.W. 622 (1934), where the court stated that given the presumptively correct nature of the assessorís value, the taxing authority need not introduce its own testimony in order to prevail at a board of review hearing.In fact, even in the absence of the assessorís testimony, unrebutted evidence offered by the taxpayerís witnesses might be construed to support the Cityís assessment.Id. The statutory scheme directs the assessorís presence only at hearings before the board, and his or her testimony only upon inquiry.See Wis. Stat. ß 70.48; Cf. State ex rel. Gregersen v. Board of Review, 5 Wis. 2d 28, 92 N.W.2d 236 (1958) (subject to reasonable regulation, the taxpayer has the right to call and to cross-examine the assessor at a board of review hearing, even where the board has not offered the assessorís testimony).It was Kohlís burden to prove that the Cityís assessment was improper or incorrect, and the City was not required to call the assessor as a witness.

10††††† Further, we reject Kohlís contention that because the City introduced Furdekís testimony appraising the property at a higher value, the City somehow ďrejectedĒ its own assessment and the statutory presumption of correctness.Furdekís appraisal was higher than the Cityís assessment and did not criticize the assessorís analysis.Furdekís testimony supported the Cityís claim that its assessment was not excessive and rebutted Vitaleís opinion that the assessor overvalued the property.

11††††† Finally, we conclude that Kohlís did not carry its burden to prove that the Cityís assessment was excessive. The trial court weighed the evidence and the competing expert opinions and found that Vitaleís appraisal was not credible.The trial courtís findings were not clearly erroneous.Additionally, Vitale did not directly attack the City assessorís methodology or adherence to protocol, but instead offered an alternative approach resulting in a lower appraisal.The use by both trial experts of the valuation approaches employed by the Cityís assessor supported the presumptive correctness of the Cityís assessment.Kohlís evidence was insufficient to ďcompel the conclusion that the assessorís valuation was incorrect[,]Ē Xerox Corp. v. DOR, 114 Wis. 2d 522, 528, 339 N.W.2d 357 (Ct. App. 1983), and therefore Kohlís failed to rebut the statutory presumption in favor of the City.††

††††††††††† By the Court.óJudgment affirmed.

††††††††††† This opinion will not be published.See Wis. Stat. Rule 809.23(1)(b)5.


 



[1]  All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[2]The appellantís appendix purports to include the transcript of the trial courtís oral decision which was incorporated by reference in and attached to its written final order.However, the appendix omits the final four pages of that transcript.The omitted pages contain the trial courtís findings concerning Vitaleís testimony and its ultimate conclusion that Kohlís failed to overcome the statutory presumption of correctness.We expect that future appellantís briefs will fully comply with the requirements of Wis. Stat. Rule 809.19(2)(a).

[3]In contrast, Kohlís successfully objected to the admission of a separate private appraisal by Harry Nicholson on the ground that Nicholson was not present at trial. The City offered the assessorís documents and the Nicholson appraisal simultaneously as part of a single exhibit, and there was extensive discussion on the record concerning the exhibitís admissibility.Despite the opportunity, Kohlís explicitly asserted that the Nicholson appraisal was ďthe only part of the exhibitĒ to which it objected.

[4]In reliance, after the stipulation, the City confirmed that it would not call the assessor as a witness.

[5]The case cited by Kohlís, Carr v. Amusement, Inc., 47 Wis. 2d 368, 177 N.W.2d 388 (1970), is simply inapt.Carr states that ďthe failure of a party to call a material witness Ö whom it would be more natural for such party to call than the opposing party,Ē id. at 375 (citation omitted), may, within the trial courtís discretion, support a jury instruction permitting a persuasive inference against such party.