Internet Sites Used as Property Valuation Evidence
National Legal Research Group, Inc.)
In valuing certain types of assets, courts commonly take judicial notice of valuation information published in book form. One of the most common examples is the use of a standard reference manual to determine the value of an automobile. Increasingly, however, the publishers of these books are posting the same or even better values on the Internet.
Can an estimate of value taken from an Internet site be considered by the court in a divorce case? An Ohio decision recently held yes. In Hess v. Riedel-Hess, 153 Ohio App. 3d 337, 794 N.E.2d 96 (2003), the issue was the value of a 1999 Honda Accord. The husband submitted a value taken from a standard reference, the "Kelley Blue Book." See 153 Ohio App. 3d at 345, 794 N.E.2d at 103. The wife submitted "an average of the trade-in and retail values . . . using the website of the National Automobile Dealer Association (’NADA’)." Id. The trial court accepted the wife’s value, and the appellate court affirmed. The court first held that the substantive information set forth on the website was accurate and not hearsay:
The NADA handbook is a standard tool for determining the value of a vehicle. [Citations omitted.] Insofar as appellant is objecting to the admissibility of the report, the trial court did not err in admitting into evidence the NADA appraisal guide from NADAguides.com in order to establish the value of appellee’s vehicle. The exhibit was properly admitted pursuant to Evid.R. 803(17), which excludes from the hearsay rule "[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations." NADA guidelines in print form and on the Internet are highly reliable and used widely by the general public.
Id. The court then held that the printout from the website was properly authenticated by the wife’s own testimony:
Further, a review of the record reveals that appellee testified that she recognized that the NADA guidelines submitted as evidence as the same values she had calculated herself on NADAguides.com. Appellee’s testimony was sufficient to support a finding that the exhibit was what its proponent claimed it to be. Evid.R. 901(A), (B)(1).
Id. Finally, the court held that the trial court did not err by finding the value on the Internet site more credible than the printed book value submitted by the husband:
As to appellant’s argument that his "Kelley’s Blue Book" value was more credible than the NADA value, we first note that appellant presented no documentary evidence showing that his determination was based on the "Kelley Blue Book." The only evidence that the "Kelley Blue Book" value was $22,150 was his testimony. Regardless, the credibility of the competing valuations was for the trial court to determine. Given that the opinions of appellant and appellee were both based upon generally credible sources, we cannot say that the trial court’s decision to rely upon appellee’s opinion based on the NADA value was against the manifest weight of the evidence.
153 Ohio App. 3d at 345-46, 794 N.E.2d at 103-04. With regard to two other vehicles, the court went even further, holding that the trial court did not err by finding the wife’s Internet-based valuations to be more credible than the valuations which the husband claimed were based upon actual appraisals by dealers.
Hess is a necessary step on the long path from a book-based to an Internet-based society. At some point in the distant future, information presently published in book form will be available primarily, perhaps even exclusively, on the Internet. Indeed, Internet-based valuation evidence has the potential to be materially more accurate than book-based valuation, as an Internet site can be more easily updated. Much depends on the facts, of course; the fact that an Internet site can be updated more easily does not mean that it necessarily will be. At a minimum, however, when a recognized authority publishes the same information in both printed and electronic form, there is no per se reason to prefer one form over the other.
One particular risk to an Internet-based valuation is that it may be somewhat easier to create a false representation of a printout from an Internet site than to create a false representation of a book. But this is more an issue of authentication than an issue of admissibility. The wife in Hess relied upon information from a large and popular website, easily accessible to the general public. She apparently disclosed the information which must be provided to the website in order to obtain the value (model of automobile, year, mileage, etc.). The husband could easily have double-checked the wife’s printout by providing the same information to the same site and informing the court if a different value was reached. Indeed, the court itself could have double-checked the wife’s information in the same manner. While a false printout can appear authentic, the likelihood that false information would be fraudulently published on a major website such as NADAguides.com is close to zero. As long as the using party submits a printed copy of the actual value obtained by the site, the ability of the opposing party and the court to double-check the value on the same site should be a sufficient guarantee of accuracy. Overall, at least for major websites operated by recognized authorities, information published on the Internet should not be viewed as inherently less authentic than information published in a printed book.
While Hess involved the valuation of automobiles, one could easily see the same issue arising with regard to prices of publicly traded stocks, which are increasingly reported on the Internet as well as in newspapers. If the courts are allowed to take judicial notice of stock prices reported in newspapers, e.g., Gravenstine v. Gravenstine, 58 Md. App. 158, 472 A.2d 1001 (1984), there is no logical reason why the court could not likewise take judicial notice of similar prices reported on a major Internet site, as long as there is no real dispute over its authenticity.
Can the court itself find and review evidence on the Internet? In Rado v. Rado, 298 A.D.2d 887, 747 N.Y.S.2d 870 (2002), the trial court "research[ed] plaintiff’s future Social Security benefits on the Internet." 747 N.Y.S.2d at 870. Because it remanded the case for other reasons, the appellate court refused to consider whether the trial court’s independent research was proper. "We note, however, that in doing so the court deprived the parties of the opportunity to contest the assumptions upon which those benefits were calculated." Id. The equal availability of the Internet to both parties, and the ease with which valuation evidence can be double-checked by all involved, are essential factors in the argument in favor of using such evidence. The trial court in Rado should have reported its research assumptions and conclusions to the parties, and it should have invited double-checking, comment, and argument before making a final decision.
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