[Cite as NDHMD, Inc. v. Cuyahoga Cty. Bd. of Revision, 2015-Ohio-174.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101207 and 101300
NDHMD, INC.
PLAINTIFF-APPELLEE
vs.
CUYAHOGA COUNTY BD. OF REVISION, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-807630
BEFORE: McCormack, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: January 22, 2015
FOR APPELLANTS
Attorney for Cleveland Metropolitan School District
James H. Hewitt, III
Hewitt Law, L.L.C.
3043 Superior Ave., 1st Floor
Cleveland, OH 441114
Attorneys for Cuyahoga County Board of Revision, et al.
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mark R. Greenfield
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
FOR APPELLEE
Attorney for NDHMD, Inc.
John P. Malone, Jr.
Malone Law L.L.C.
614 W. Superior Ave.
Suite 1150
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} This is an appeal from a judgment of the Cuyahoga County Court of Common
Pleas regarding the value for ad valorem tax purposes of a dilapidated property in Cleveland.
The property was sold at an auditor’s auction of surplus forfeited land for $1,500. The court
determined the sale price to be the value of the property.
{¶2} There are two questions to be resolved in this appeal: first, whether the instant
valuation complaint is barred by R.C. 5715.19(A)(2), which prohibits a second filing absent one
of the four enumerated exceptions; and second, whether the sale price was evidence of the
property’s fair market value. Both questions turn on whether the auction sale was an
arm’s-length transaction. The trial court found it was. After a review of the record and
pertinent law, we agree. Consequently, we affirm the trial court’s judgment.
Substantive Facts and Procedural History
{¶3} The owner of a commercial building located at 7275 Wentworth Avenue,
Cleveland, failed to pay property taxes. In April 2008, Cuyahoga County began tax foreclosure
proceedings. The foreclosure was granted, and the property was offered for sale at a judicial
auction on May 4, 2009. The property did not sell. It was offered for sale at another judicial
auction on May 18, 2009. The property again failed to sell. An order of forfeiture was then
entered on June 19, 2009. Three days later, the property was transferred to the state of Ohio.
{¶4} On March 24, 2010, the property was offered for sale at public auction held by the
county auditor. George Dietrich, an agent of NDHMD, was one of the three bidders. He
submitted the winning bid of $1,500 and tendered the full sale price on March 30, 2010.
Complaint for Tax Year 2009
{¶5} The next day, on March 31, 2010, NDHMD filed a valuation complaint before the
Cuyahoga County Board of Revision (“Board of Revision”) seeking a decrease in the
property’s valuation for tax year 2009. The Board of Revision conducted a hearing on April 25,
2011. At the hearing, the Cleveland Metropolitan School District Board of Education (the
“School Board”) opposed any decrease in valuation, arguing the auction sale was not an arm’s
length transaction. The School Board argued the value of the property should remain at its
current value of $963,300. After hearing, the Board of Revision issued a decision, reducing the
property’s value to $444,720.
{¶6} NDHMD appealed the decision of the Board of Revision to the common pleas
court. The common pleas court upheld the decision. NDHMD then appealed to this court.
This court reversed the trial court, on the ground that the jurisdiction of the Board of Revision
was never properly invoked. We noted the valuation complaint was filed on March 31, 2010,
more than two weeks before the deed of the property was executed and title transferred to
NDHMD on April 16, 2010. Because NDHMD was not the legal owner of the property when it
filed the complaint, the Board of Revision did not have jurisdiction to entertain its valuation
complaint. NDHMD v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No. 98004,
2012-Ohio-5508.
Complaint for Tax Year 2011
{¶7} NDHMD filed the instant complaint, again seeking a reduction of the property’s
valuation to $1,500, for tax year 2011. The Board of Revision held a hearing on March 22,
2013. The property’s owner George Dietrich testified at the hearing.
{¶8} Dietrich testified he learned about the public auction held by the county auditor in
an advertisement in the Plain Dealer. The property had been abandoned for seven years and
was in shambles. All the windows and doors had been broken or removed. There was no
electrical wiring in the building. The roof had significant leaking due to a fire set on the roof by
the vandals.
{¶9} The bidding started at $300 at the auction and there were at least three bidders.
Dietrich placed the highest bid of $1,500 and purchased the property. He was in the business of
recycling used light bulbs and other wastes, and he purchased the warehouse to store these
wastes. He testified that significant repairs were necessary for the building.
{¶10} The School Board stipulated to the dilapidated condition of the building. It did
not present any evidence of its own.
{¶11} After the hearing, the Board of Revision issued a decision, making no change in
the value of the property. NDHMD appealed that decision to the common pleas court. The
trial court reversed the Board of Revision, finding the auction sale to be an arm’s length
transaction and the sale price of $1,500 to be the property’s value for tax purposes. The trial
court reasoned that the county was under no compulsion to sell the property and the buyer and
seller were both willing parties. As such, the sale was at arm’s length and the sale price of
$1,500 was evidence of the property’s actual value. Consequently, the trial court set aside the
auditor’s value and determined the value of the property to be the sale price of $1,500.
{¶12} The Board of Revision and the School Board (referred to as “appellants”
hereafter) now appeal.1 They raise four assignments of error, which state:
I. Since Appellee’s tax year 2011 tax valuation complaint was an impermissible
second filing within a single triennium, and therefore a tax complaint over which
1
The School Board appealed from the trial court’s judgment in NDHMD, Inc. v. Cuyahoga Cty. Bd. of
Revision, 8th Dist. Cuyahoga No. 101207. The Board of Revision and the county fiscal officer filed a separate
appeal in NDHMD, Inc. v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No. 101300. We sua sponte
consolidated the two appeals for purposes of briefing and disposition.
the Cuyahoga County Board of Revision (“BOR”) had no jurisdiction pursuant to
R.C. § 5715.19, the Trial Court committed error by not dismissing the Appellee’s
appeal from the BOR’s determination of value and remanding it to the BOR with
instructions to dismiss it.
II. The Trial Court erred in even considering the Appellee’s tax year 2011 tax
valuation complaint because R.C. § 5715.19 (A)(2) expressly requires that the
circumstance alleged to be the basis for permission to file a second tax complaint
to have been a circumstance “not taken into consideration with respect to the prior
complaint,” and because the Auditor’s Forfeited Land Sale was taken into
consideration with respect to the Appellee’s first tax complaint, the same sale
cannot be the proper basis for the filing of a second tax complaint.
III. The Trial Court erred in determining that the Appellee’s first tax complaint
was a nullity, and that as a result the BOR never considered whether or not the
Auditor’s Forfeited Land Sale was an arm’s length transaction.
IV. The Trial Court erred in determining that an Auditor’s
Forfeited Land Sale constitutes evidence of taxable
value pursuant to R.C. § 5713.03.
Standard of Review
{¶13} A decision of a county board of revision can be appealed to the court of common
pleas pursuant to R.C. 5717.05, or appealed to the Ohio Board of Tax Appeals pursuant to R.C.
5717.01. When, as here, the decision of the board of revision is appealed to the common pleas
court, the common pleas court is to independently weigh and evaluate all proper evidence and
make an independent determination of the valuation of the property. Black v. Bd. of Revision,
16 Ohio St.3d 11, 13, 475 N.E.2d 1264 (1985); Mansbery v. Cuyahoga Cty. Fiscal Officer, 8th
Dist. Cuyahoga No. 98156, 2013-Ohio-932, ¶ 7; Lockhart Dev. Co. v. Summit Cty. Bd. of
Revision, 9th Dist. Summit No. 25728, 2011-Ohio-5000, ¶ 8. The common pleas court’s
judgment may then be appealed to an appellate court, which reviews the trial court’s independent
judgment for an abuse of discretion. Newport Harbor Assn. v. Cuyahoga Cty. Bd. of Revision,
8th Dist. Cuyahoga No. 98193, 2012-Ohio-5291, ¶ 9; Tall Pines Holdings, Ltd. v. Testa, 10th
Dist. Franklin No. 04AP-372, 2005-Ohio-2963, ¶ 19.
{¶14} The present appeal involves more than the issue of the property’s valuation.
Because of the prior filing for tax year 2009, the threshold issue in this appeal is whether
NDHMD’s 2011 complaint was permitted under R.C. 5715.19(A)(2), which bars a second
complaint within an interim period. As the question involves jurisdictional prerequisites to a
board of revision’s review of the auditor’s valuation, it is a question of law. Akron Ctr. Plaza,
L.L.P. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶
10 (determining an element of the jurisdictional sufficiency of a valuation complaint presents an
issue of law on appeal). When a question presented on appeal is a question of law, the appellate
court’s review of the trial court’s decision on a tax appeal is not deferential, but de novo. Id.,
citing State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8.
Whether the Instant Complaint Is Barred by R.C. 5715.19(A)(2)
{¶15} The instant complaint is for tax year 2011, which is in the same interim period
(2009-2011) as the first complaint. R.C. 5715.19(A)(2) does not permit a person to file a
second valuation complaint in the same interim period unless one of the four enumerated
exceptions is satisfied. R.C. 5715.19(A)(2) states:
No person, board, or officer shall file a complaint against the valuation or
assessment of any parcel that appears on the tax list if it filed a complaint against
the valuation or assessment of that parcel for any prior tax year in the same
interim period, unless the person, board, or officer alleges that the valuation or
assessment should be changed due to one or more of the following circumstances
that occurred after the tax lien date for the tax year for which the prior complaint
was filed and that the circumstances were not taken into consideration with
respect to the prior complaint:
(a) The property was sold in an arm’s length transaction, as described in
section 5713.03 of the Revised Code;
(b) The property lost value due to some casualty;
(c) Substantial improvement was added to the property;
(d) An increase or decrease of at least fifteen per cent in the property’s
occupancy has had a substantial economic impact on the property.
(Emphasis added.)
{¶16} Under the statute, a second complaint within an interim period is not permitted
unless the complainant alleges and establishes one of the four enumerated circumstances.
Developers Diversified v. Cuyahoga Cty. Bd. of Revision, 84 Ohio St.3d 32, 35, 701 N.E.2d 975
(1998). The requirement is intended to reduce the number of filings, while still allowing new
tax valuations in interim years in certain limited circumstances. Dublin City School Dist. v.
Franklin Cty. Bd. of Revision, 79 Ohio App.3d 781, 784, 607 N.E.2d 1170 (10th Dist.1992).
Full compliance with R.C. 5715.19 is necessary before a county board of revision is empowered
to act on the merits of a claim. Developers Diversified at 35.
{¶17} In the prior appeal concerning NDHMD’s tax year 2009 complaint, this court held
that because NDHMD was not the legal owner of the property at the time it filed the valuation
complaint, it did not have standing to bring the complaint and therefore the BOR did not have
jurisdiction to entertain NDHMD’s complaint. The initial question in this appeal is then
whether the 2009 complaint, brought without standing, constituted a prior “filing” for purposes
of R.C. 5715.19(A)(2).
{¶18} We find guidance in Elkem Metals Co., Ltd. Partnership v. Washington Cty. Bd. of
Revision, 81 Ohio St.3d 683, 693 N.E.2d 276 (1998). In that case, a property owner filed a
valuation complaint but did not state the amount of decrease sought nor alleged any basis for
claiming a reduction, as required by R.C. 5715.13. Because the board of revision’s jurisdiction
was not properly invoked, the complaint was dismissed. The property owner filed a second
complaint within the same interim period, without alleging any of the enumerated exceptions.
{¶19} The question for the Supreme Court of Ohio to resolve in Elkem was whether the
first complaint should be deemed “filed” for purposes of R.C. 5715.19(A)(2). If it was deemed
“filed,” then the second complaint brought within the same triennium must allege and establish
one of the four exceptions. The Supreme Court of Ohio held that the prior complaint
constituted a “filing,” for purposes of R.C. 5715.19(A)(2), even though the complaint was
ultimately dismissed on jurisdictional grounds. As the court explained, there was no wording in
R.C. 5715.19(A)(2) to allow a second complaint in the same triennium where the first complaint
is dismissed for jurisdictional reasons. Id. at 687-688.
{¶20} Elkem therefore stands for the proposition that when the jurisdictional requirements
are not met in a prior complaint, the prior complaint would nonetheless be considered “filed” for
purposes of R.C. 5715.19(A)(2), and one of the four exceptions must be established for a
subsequent complaint.
{¶21} The holding of Elkem applies in this case. Elkem involved a failure of a prior
complaint to properly invoke the board of revision’s jurisdiction in not alleging the amount or
basis of a reduction sought. The present case involves a lack of standing to bring the prior
complaint. Because standing is jurisdictional in administrative appeals, Groveport Madison
Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 137 Ohio St.3d 266,
2013-Ohio-4627, 998 N.E.2d 1132, ¶ 25, both cases concern a dismissal of a prior complaint on
jurisdictional grounds. Applying Elkem, therefore, NDHMD’s 2009 constituted a prior “filing”
for purposes of R.C. R.C. 5715.19(A)(2).2
{¶22} Consequently, NDHMD must allege and establish one of the four enumerated
exceptions and must show the exception had not been taken into account regarding the prior
complaint, in order to be permitted to file the 2011 complaint. A review of NDHMD’s tax year
2011 complaint shows that NDHMD acknowledged that it had filed a prior complaint but alleged
an arm’s length sale of the property as a basis for the second filing.
{¶23} Because it is the complainant’s burden to show it meets the requirement of R.C.
5715.19(A)(2), in order for the tax year 2011 complaint to be a valid filing, NDHMD must
establish the arm’s length nature of the auction sale.3
Appellants cite a Ninth District case, Colvin v. Summit Cty. Bd. of Revision, 9th Dist.
2
Summit No. 26329, 2012-Ohio-5394, claiming the case stands for the proposition that a second
complaint is barred within a triennium (unless one of the exceptions is alleged and established) when
the prior complaint is brought by one without standing. Although we reach the conclusion that
NDHMD’s second complaint must allege one of the exceptions, we note that Colvin is not pertinent
here.
In that case, the property owner filed a second complaint within the triennium without alleging
an exception. He argued he did not own the property in the prior tax year and therefore he did not
have standing to bring the first complaint; he claimed, therefore, the second complaint was not barred.
The Ninth District rejected the claim. The court first pointed out the property owner cited no
authority to support his claim. The court then reasoned that, even assuming for the sake of argument
that a complaint brought by a person lacking standing did not operate as a bar under R.C.
5715.19(A)(2), the complainant had not pointed to any evidence in the record to show he did not have
standing to file the first complaint. Colvin does not stand for the proposition as appellants claim.
In any event, it is inapplicable here because, where the record in Colvin did not support a lack of
standing in the first complaint, in the instant case this court held in the prior appeal that NDHMD did
not have standing to bring the first complaint.
The Board of Revision filed a motion to dismiss the tax year 2011 complaint on the ground
3
that the auction sale was not at arm’s length. The trial court denied the motion.
Arm’s-Length Transaction
{¶24} The Supreme Court defined an arm’s length sale as: “voluntary, i.e., without
compulsion or duress; it generally takes place in an open market; and the parties act in their own
self-interest.” Walters v. Knox Cty. Bd. of Revision, 47 Ohio St.3d 23, 25, 546 N.E.2d 932
(1989). An arm’s-length sale is one that “encompasses bidding and negotiation in the open
market between a ready, willing and able buyer, and a ready, willing and able seller, both being
mentally competent, and neither acting under coercion.” Id.
{¶25} A sale is considered at arm’s length if buyer and seller are “typically motivated
market participants.” Cincinnati Schools Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision,
127 Ohio St.3d 63, 2010-Ohio-4907, 936 N.E.2d 489, ¶ 22, citing AEI Net Lease Income &
Growth Fund v. Erie Cty. Bd. of Revision, 119 Ohio St.3d 563, 2008-Ohio-5203, 895 N.E.2d
830, ¶ 25. A “typically motivated” transaction is one in which the buyer and seller are
“pursuing their own financial interests.” Hilliard City Schools Bd. of Edn. v. Franklin Cty. Bd.
of Revision, 139 Ohio St.3d 1, 2014-Ohio-853, 9 N.E.3d 920, citing AEI at ¶ 25. An example of
a seller who is not “typically motivated” is one in a foreclosure sale that usually “occurs under
the compulsion that the property be liquidated for the benefit of creditors.” Olentangy Local
Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision, Slip Opinion No. 2014-Ohio-4723, ¶ 36,
citing Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 127 Ohio St.3d 63,
2010-Ohio-4907, 936 N.E.2d 489, ¶ 3.
Whether the Subject Public Auction was Arm’s Length; R.C. 5713.04
{¶26} The instant case involves a county auditor’s public auction of forfeited surplus land
authorized under R.C. 5723.06. Although R.C. 5713.04 states that the price for which property
would sell “at auction or forced sale” shall not be taken as the criterion of its value, the courts
have recognized an auction may be at arm’s length under appropriate circumstances.
{¶27} In a recent decision, Olentangy Local Schools Bd. of Edn., supra, the Supreme
Court of Ohio interpreted R.C. 5713.04 and provided guidance regarding the issue presented in
the present appeal. After clarifying that R.C. 5713.04 applies to both involuntary and voluntary
auction, the court held that R.C. 5713.04 requires the taxing authorities to presume that an
auction sale price is not a voluntary, arm’s-length transaction. The presumption, however, may be
rebutted by evidence that a particular sale was in fact voluntary and did occur at arm’s length.
Id. at ¶ 2.
{¶28} The Supreme Court of Ohio explained that even in the cases of a foreclosure sale,
which is, by definition, involuntary, it is possible to introduce rebutting evidence to show that a
particular foreclosure sale is voluntary. Id. at ¶ 37. The court explained that in cases
involving auction sales, there are even more reasons than foreclosure cases to allow the parties to
introduce evidence to show that a sale was voluntary and at arm’s length. Id. at ¶ 39. The court
explained that the circumstances of auctions vary greatly, increasing the likelihood that a
particular transaction may satisfy the criteria for an arm’s-length sale. Id. The court cited
instances where the Board of Tax Appeals recognized an auction sale as an arm’s-length
transaction. Id., citing Concept Invest. Group, BTA No. 2005-T-1267, 2006 Ohio Tax LEXIS
1482 (Nov. 17, 2006) (the public auction sale was arm’s length because the purchaser did not act
under duress); Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, BTA No.
2007-A-1196, 2009 Ohio Tax LEXIS 1140 (because the public sale was carried out voluntarily
by the seller, the pubic auction contained the elements of an arm’s-length transaction).
{¶29} The Supreme Court of Ohio reiterated in Olentangy the factors relevant to deciding
whether a transaction was at arm’s length: (1) whether the sale was voluntary, i.e., without
compulsion or duress, (2) whether the sale took place in an open market, and (3) whether the
buyer and seller acted in their own self interest. Id. at ¶ 47, citing Walters, 47 Ohio St.3d at 25,
546 N.E.2d 932. Applying these factors, the court in Olentangy concluded the auction sale in
that case was a voluntary arm’s-length transaction.
{¶30} Here, the record reflects that the dilapidated, long-abandoned building was
transferred to the state after it failed to sell at two judicial auctions. The instant auction, the
third attempt to dispose of the property, was a public auction of surplus land held by the state.
The auction was advertised in the newspaper. There were multiple bidders. The property was
sold to the highest bidder. Because the state owed the property at the time of the auction, no
taxes were due and the state was under no compulsion to sell the property to satisfy delinquent
taxes.
{¶31} The record therefore contains evidence showing that the property was sold in an
open market, and the buyer and seller acted in their own self interest without compulsion or
duress. All the elements of an arm’s-length sale appeared to be present. Indeed, this is what
the trial court found.
{¶32} Although we review de novo the jurisdictional question — whether the tax year
2011 complaint was permitted under R.C. 5715.19(A)(2) — we defer to the trial court for its
finding that the instant auction sale was voluntary and it occurred at arm’s length. NDHMD
presented sufficient evidence to rebut the presumption that the auction was involuntary and
therefore met the burden of establishing one of the exceptions enumerated under R.C.
5715.19(A)(2). Its 2011 complaint was proper under the statute.
{¶33} Appellants argue that the issue of whether the auction sale was an arm’s-length
transaction was already taken into consideration in the proceeding for the 2009 complaint; they
argue, therefore, pursuant to R.C. 5715.19, NDHMD did not satisfy the statute, even if the
transaction was at arm’s length. This claim is without merit. As we decided in the first appeal,
the jurisdiction of the Board of Revision was never properly invoked to entertain the 2009
complaint, therefore, the Board of Revision could not have “considered” the arm’s-length sale.
{¶34} Based on the foregoing analysis, we overrule the first, second, and third
assignments of error.
Arm’s-Length Sale as Best Evidence of Value
{¶35} Pursuant to R.C. 5713.03, if a property has been the subject of an arm’s-length sale
between a willing seller and a willing buyer within a reasonable length of time, either before or
after the tax lien date, the auditor “shall” consider the sale price to be the true value for taxation
purposes.4 The Supreme of Court of Ohio consistently held that when determining value, the
best evidence of value is an actual, recent sale of the property in an arm’s-length transaction.
Health Care Reit, Inc. v. Cuyahoga Cty. Bd. of Revision, 140 Ohio St.3d 30, 2014-Ohio-2574, 14
N.E.3d 1009, ¶ 21; Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 106
Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782; Conalco, Inc. v. Monroe Cty. Bd. of Revision,
50 Ohio St.2d 129, 363 N.E.2d 722 (1977), paragraph one of the syllabus. A party can rebut this
presumption of value only by “challenging whether the elements of recency and arm’s-length
character between a willing seller and a willing buyer are genuinely present for that particular
4
We note that, effective September 10, 2012, the General Assembly amended R.C. 5713.03 and changed the
word “shall” to “may.” 2012 Am.Sub.H.B. No. 487. The change is impertinent in this case because the courts
apply the substantive tax law that was in effect during the tax year at issue, in this case 2011. See Sapina v.
Cuyahoga Cty. Bd. of Revision, 136 Ohio St.3d 188, 2013-Ohio-3028, 992 N.E.2d 1117, ¶ 20.
sale.” Cummins Property Servs., L.L.P. v. Franklin Cty. Bd. of Revision, 117 Ohio St.3d 516,
2008-Ohio-1473, 885 N.E.2d 222, ¶ 13.
{¶36} In this case, the trial court independently determined, as it should, the valuation of
the property based on the price it was sold for at the public auction held after the property failed
to sell at two judicial auctions. It is noteworthy that the county, without duress, sold the
property to NDHMD for $1,500 but claims the property had the value of $963,300 for tax
purposes. The county’s valuation is severely undermined by its own voluntary acceptance of
$1,500 for the property in the open market. The trial court recognized it. Our review of the
trial court’s decision regarding the value is for an abuse of discretion. Based on the record, we
do not find the trial court’s judgment to be unreasonable, arbitrary, or unconscionable. The
fourth assignment of error lacks merit.
{¶37} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant 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 common pleas
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.
______________________________________________
TIM McCORMACK, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR