Woods Cove III, L. L.C. v. Am. Guaranteed Mgmt. Co. , 113 N.E.3d 62 ( 2018 )

[Cite as Woods Cove III, L.L.C. v. Am. Guaranteed Mgt., Co., 2018-Ohio-1829.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 105494 and 105901
WOODS COVE III, L.L.C.
PLAINTIFF -APPELLEE
vs.
AMERICAN GUARANTEED
MANAGEMENT CO., L.L.C., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CV-14-836666 and CV-15-839377
BEFORE: Keough, J., McCormack, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: May 10, 2018
ATTORNEYS FOR APPELLANTS
Joseph Bancsi
The Goodwin Bryan Building
22050 Mastick Road
Cleveland, Ohio 44126
Michael F. Westerhaus
362 Arbour Garden Avenue
Las Vegas, Nevada 89148
ATTORNEYS FOR APPELLEE
David T. Brady
Austin B. Barnes, III
Suzanne M. Godenswager
Brian Steven Gozelanczyk
Manbir S. Sandhu
Andrew M. Tomko
Sandhu Law Group, L.L.C.
1213 Prospect Avenue, Suite 300
Cleveland, Ohio 44115
For Cuyahoga County Treasurer
Awatef Assad
Cuyahoga County Law Department
Assistant Director of Law
2079 E. 9th Street, 7th Floor
Cleveland, Ohio 44115
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Michael A. Kenny
Gregory B. Rowinski
Assistant County Prosecutors
310 W. Lakeside Avenue, Suite 300
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} In these consolidated appeals, defendants-appellants Nick Papadelis
(“Papadelis”) and American Guaranteed Management Co., L.L.C. (“American
Guaranteed”) (collectively, “appellants”) appeal from the trial court’s judgments
adopting the magistrate’s decisions that granted summary judgment in favor of
plaintiff-appellee Woods Cove III, L.L.C. (“Woods Cove”) and denied appellants’
motions for summary judgment. For the reasons that follow, we affirm.
I. Background
{¶2} This case concerns tax certificates purchased by Woods Cove from the
Cuyahoga County Treasurer and the ensuing foreclosure actions.
Ohio’s tax certificate legislation, R.C. 5721.30 through 5721.43, allows a
county government to sell tax certificates to private investors. A tax
certificate entitles the certificate holder to the first lien on the real property.
R.C. 5721.32. A property owner can redeem the certificate and remove the
lien by paying the certificate holder the purchase price plus interest,
penalties, and costs. R.C. 5721.38. If the property owner fails to redeem
the certificates, the tax certificate holder may initiate foreclosure
proceedings on the real property after complying with certain statutory
requirements.
Woods Cove II, L.L.C. v. Am. Guaranteed Mgmt. Co., L.L.C., 8th Dist. Cuyahoga No.
103652, 2016-Ohio-3177, ¶ 2.
{¶3} American Guaranteed owed property taxes on property located on Torwood
Court in Cleveland, and Papadelis owed property taxes on property located on Orchard
Boulevard in Parma Heights. Woods Cove purchased tax certificates representing the
tax liens on the properties from the county treasurer. When Papadelis and American
Guaranteed failed to redeem the certificates, Woods Cove filed foreclosure actions
pursuant to R.C. Chapter 5721. The cases were assigned to the same trial court judge.
{¶4} Papadelis and American Guaranteed filed identical answers to the
complaints, and both asserted a counterclaim seeking a declaratory judgment that Ohio’s
tax certificate legislation is unconstitutional.
{¶5} Woods Cove subsequently filed identical motions for summary judgment in
both cases. In its motions, Woods Cove asserted that there were no genuine issues of
material fact that (1) it was the holder of the tax certificates, (2) the amount and
nonpayment of the taxes as shown on the tax certificates was presumptively valid, (3) it
had not received any payment on the assessments referred to in the tax certificates, (4) it
had filed a notice of intent to foreclose with the county treasurer, and (5) the treasurer had
certified that the properties had not been redeemed. Accordingly, Woods Cove argued
that it was entitled to judgment as a matter of law.
{¶6} In their identical motions for summary judgment and responses to Woods
Cove’s motion, Papadelis and American Guaranteed did not dispute Woods Cove’s
arguments regarding their liability on the tax certificates, or the amount and validity of the
taxes, assessments, charges, penalties, and interest due and unpaid. Instead, they argued
they were entitled to summary judgment on their counterclaims that Ohio’s tax certificate
legislation is unconstitutional.
{¶7} Papadelis and American Guaranteed argued that the tax certificate legislation
violates the equal protection requirements of the United States and Ohio Constitutions
because the statute treats similarly situated property owners (i.e., those on the delinquent
land list) differently by allowing the treasurer to arbitrarily select which tax certificates
will be sold, thereby requiring the property owners chosen for tax certificate foreclosure
to pay interest and fees to redeem their property that property owners subject to a
noncertificate foreclosure are not required to pay.
{¶8} They argued further that Ohio’s tax certificate legislation violates due process
protections of the United States and Ohio Constitutions because under R.C. 5721.40, after
two unsuccessful attempts to sell the tax certificate property, the tax certificate holder
obtains an “incontestable” title to the parcel. Appellants argued that because the title
obtained by the tax certificate holder is “incontestable,” a property owner is precluded
from appealing any mistakes in the foreclosure process, in violation of the property
owner’s due process rights.
{¶9} Last, appellants argued that Ohio’s tax certification legislation is
unconstitutional because it violates the doctrine of separation of powers by allowing the
county treasurer, instead of the judiciary, as trier of fact, to decide the amount of attorney
fees related to tax certificate foreclosures. They argued further that R.C. 5721.37(F),
which provides that the tax certificate is “presumptive evidence” in all courts “of the
amount and validity of the taxes, assessments, charges, penalties * * * and interest” is a
legislative intrusion into the court’s rule-making authority to regulate court procedure.
{¶10} In its identical journal entries regarding the respective motions for summary
judgment, the trial court noted that in light of the “ever-present disparity in the application
of fees and costs associated with the treasurer’s tax foreclosures and those of private
investors like Woods Cove,” it was “no surprise” that appellants had raised a
constitutional challenge to Ohio’s tax certificate legislation. Nevertheless, without
addressing Papadelis’s and American Guaranteed’s specific constitutional challenges, the
trial court found that the tax certificate statute was presumptively valid and granted
Woods Cove’s motion for summary judgment and denied appellants’ motions.
{¶11} This court dismissed appellants’ subsequent appeals of the trial court’s
ruling for lack of a final, appealable order because the trial court’s judgment entries had
not made a determination as to the priority of liens or the amount of the judgment.
Woods Cove III, L.L.C. v. Papadelis, 8th Dist. Cuyahoga No. 104756 (Nov. 10, 2016);
Woods Cove III, L.L.C. v. Am. Guaranteed, 8th Dist. Cuyahoga No. 104758 (Nov. 10,
2016).
{¶12} On December 16, 2016, upon remand, the magistrate issued decisions in
both cases granting foreclosure and setting forth the lien priorities and judgment amounts.
The trial court subsequently denied appellants’ motions for an extension of time to file
objections to the magistrate’s decisions and issued journal entries in both cases adopting
the magistrate’s decisions. Papadelis and American Guaranteed both appealed, and the
cases were consolidated for briefing, argument, and disposition.
II. Analysis
A. Constitutionality of Ohio’s Tax Certificate Statute
{¶13} In their first assignment of error, appellants contend that the trial court erred
in denying their motions for summary judgment after finding that Ohio’s tax certificate
legislation is constitutional.
{¶14} We review summary judgment rulings de novo, applying the same standard
as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241
(1996). We accord no deference to the trial court’s decision and independently review
the record to determine whether summary judgment is appropriate. Id.
{¶15} As an initial matter, we conclude that the trial court was without jurisdiction
to decide the constitutionality issue because the record reflects that the Ohio attorney
general was not served with appellants’ answers requesting declaratory judgment
regarding the constitutionality of Ohio’s tax certificate legislation.
{¶16} R.C. 2721.12(A) requires service of a copy of the pleadings on the attorney
general when a party challenges the constitutionality of a statute in a declaratory judgment
action. If the service requirement is not met, a trial court lacks subject matter jurisdiction
to determine the constitutionality of the statute. Woods Cove II, L.L.C., 8th Dist.
Cuyahoga No. 103652, 2016-Ohio-3177 at ¶ 10, fn. 2.
{¶17} In Cicco v. Stockmaster, 89 Ohio St. 3d 95, 728 N.E.2d 1066 (2000), the
Ohio Supreme Court held that a party who is challenging the constitutionality of a statute
must assert the claim in the complaint (or other initial pleading), and must serve the
pleading upon the attorney general in accordance with the methods set forth in Civ.R. 4.1
in order to vest a trial court with jurisdiction to decide the constitutional challenge. The
Supreme Court subsequently employed an expansive interpretation of Cicco to dismiss an
appeal sua sponte where the constitutionality of a statute had been raised in a motion to
dismiss filed in an ordinary civil action. George Shima Buick, Inc. v. Ferencak, 91 Ohio
St.3d 1211, 741 N.E.2d 138 (2001).
{¶18} In subsequent pronouncements regarding the duty imposed by R.C.
2721.12(A) to notify the attorney general, the Supreme Court limited Cicco and the
application of R.C. 2721.12(A) to those cases in which a party challenges the
constitutionality of a statute in a declaratory judgment action. Cleveland Bar Assn. v.
Picklo, 96 Ohio St. 3d 195, 2002-Ohio-3995, 772 N.E.2d 1187; Pinchot v. Charter One
Bank, F.S.B., 99 Ohio St. 3d 390, 2003-Ohio-4122, 792 N.E.2d 1105, ¶ 6, fn. 1. Where
the constitutionality of a statute is raised in a motion filed in an ordinary civil action, R.C.
2721.12(A) does not apply. Tonti v. Tonti, 10th Dist. Franklin Nos. 03AP-494 and
03AP-728, 2004-Ohio-2529, ¶ 136.
{¶19} Here, the constitutionality of Ohio’s tax certificate legislation was raised in
appellants’ answer to Woods Cove’s complaint by way of a counterclaim that specifically
requested a declaratory judgment that the statute is unconstitutional. Accordingly, the
service requirement of R.C. 2721.12(A) was applicable. Grover v. Bartsch, 170 Ohio
App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 30 (2d Dist.). Because the attorney
general did not receive notice as required by R.C. 2721.12, the trial court was without
jurisdiction to render a declaratory judgment regarding the constitutional issue, and its
pronouncement regarding the constitutionality of Ohio’s tax certificate legislation is
therefore void.
{¶20} The trial court did have jurisdiction, however, to decide the foreclosure
issue because that issue was separate from the constitutional issue. Ohioans for Fair
Representation v. Taft, 67 Ohio St. 3d 180, 183, 616 N.E.2d 905 (1993) (“a jurisdictional
failure regarding one cause of action in a complaint does not taint the entire complaint”);
Osborne v. Mentor, 133 Ohio App. 3d 22, 26-27, 726 N.E.2d 1027 (11th Dist.1999) (the
failure to comply with R.C. 2721.12 does not deprive the court of subject matter
jurisdiction over the case; it precludes the court from entering declaratory relief).
{¶21} Under Civ.R. 56, summary judgment is appropriate when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can reach only a conclusion that is adverse to the nonmoving
party. The moving party has the initial burden of setting forth specific facts that
demonstrate its entitlement to summary judgment. Dresher v. Burt, 75 Ohio St. 3d 280,
292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary
judgment is not appropriate. If the moving party meets this burden, the nonmoving party
has the reciprocal burden to point to evidence of specific facts in the record
demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.
Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.
{¶22} In its motions for summary judgment, Woods Cove presented evidence that
it was the holder of the tax certificates and entitled to foreclose on them, as well as
evidence regarding the amounts due on the certificates. Thus, Woods Cove met its initial
burden under Civ.R. 56(C). In their motions for summary judgment and responses to
Woods Cove’s motions, appellants presented no evidence whatsoever disputing Woods
Cove’s entitlement to foreclose or the amounts due. Accordingly, appellants did not
meet their reciprocal burden of demonstrating there was any genuine issue of material fact
for trial, and the trial court therefore properly granted summary judgment in favor of
Woods Cove on its complaints for foreclosure. The first assignment of error is
overruled.
B. Attorney Fees
{¶23} In their second assignment of error, appellants assert that the trial court erred
in adopting the magistrate’s decision that awarded attorney fees to Woods Cove because
the decision did not determine the reasonableness of the attorney fees, and did not state
the basis for the fee amount determination, such as the number of hours expended on the
litigation and the hourly rate.
{¶24} Civ.R. 53(D)(3)(b)(iv), regarding objections to a magistrate’s decision,
prohibits a party from “assign[ing] as error on appeal the court’s adoption of any finding
of fact or conclusion of law unless the party has objected to that finding or conclusion
under this rule.” Appellants did not file objections to the magistrate’s decision and thus
have waived all but plain error. Glendell-Grant v. Grant, 8th Dist. Cuyahoga No.
105895, 2018-Ohio-1094, ¶ 17. In applying the plain error doctrine in a civil case,
“reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to
those extremely rare cases where exceptional circumstances require its application to
prevent a manifest miscarriage of justice.” Id., citing Goldfuss v. Davidson, 79 Ohio
St.3d 116, 121, 679 N.E.2d 1099 (1997). We do not find such exceptional circumstances
in these cases.
{¶25} Contrary to appellants’ argument, the magistrate stated the basis for the
award of attorney fees — R.C. 5721.371(B)(1) — which provides that attorney fees less
than or equal to $2,500 are presumed reasonable. Appellants’ reliance on TCF Natl.
Bank FBO Aeon Fin., L.L.C. v. Bors, 5th Dist. Stark No. 2009CA00122,
2010-Ohio-1403, is misplaced. That case held that in awarding attorney fees under R.C.
5721.371, a trial court must state the factors it used in calculating the award (e.g., the
number of hours, the hourly fee, the difficulty of the litigation) to demonstrate the
reasonableness of the award. However, Bors was decided before the 2016 amendment to
R.C. 5721.371, which added Section B to the statute. Under R.C. 5721.371(B)(1),
attorney fee awards less than or equal to $2,500 are presumptively reasonable.
{¶26} The magistrate’s decision awarded attorney fees less than $2,500. The fees
were thus presumptively reasonable, and there was no requirement the magistrate set forth
specific findings to demonstrate the reasonableness of the fees. Furthermore, appellants
presented no evidence rebutting the presumption of reasonableness. Accordingly, we
find no plain error, and the second assignment of error is overruled.
C. Extension of Time
{¶27} On December 16, 2016, the magistrate issued decisions in both cases
granting foreclosure and setting forth the lien priorities and judgment amounts. On
December 30, 2016, counsel for Papadelis and American Guaranteed filed in both cases a
notice of appearance and a motion for a 30-day extension of time to file objections to the
magistrate’s decision, asserting that he was newly retained and needed additional time to
analyze and prepare objections. Woods Cove opposed the motion, arguing that although
counsel had newly made a formal appearance in the cases, he was in fact not newly
retained because he had been working with Woods Cove’s counsel since October 2016 to
resolve the matter. Woods Cove pointed out that appellants’ “new” counsel had entered
an appearance on October 11, 2016, in their appeals of the trial court’s judgment, and had
filed motions to consolidate the cases for appeal and to extend the time for filing the
appellate brief. Thus, Woods Cove argued that counsel had actually been working on the
case for at least two months prior to his notice of appearance in the trial court cases. The
trial court subsequently denied the motion for extension of time.
{¶28} In their third assignment of error, appellants contend that the trial court erred
in denying their request for an extension of time to file objections to the magistrate’s
decision.
{¶29} Pursuant to Civ.R. 53(D)(3)(b)(i), a party may file objections to a
magistrate’s decision within 14 days of the filing of the decision. However, Civ.R.
53(D)(5) permits the trial court to grant a reasonable extension of time for a party to file
objections outside the 14-day period “for good cause shown.” “The definition of good
cause is without precise parameters and varies according to the facts presented in each
individual case.” Woodruff v. Concord City Discount Clothing Store, 2d Dist.
Montgomery No. 10072, 1987 Ohio App. LEXIS 5914, *9 (Feb. 19, 1987).
{¶30} A trial court has broad discretion in determining whether to grant a motion
for an extension of time, and the court’s decision will not be reversed on appeal absent an
abuse of discretion. Bedi-Hetlin v. Hetlin, 3d Dist. Seneca No. 13-14-08,
2014-Ohio-4997, ¶ 49. A discretionary act that is “clearly against reason and evidence”
is an abuse of discretion. In re Guardianship of S.H., 9th Dist. Medina No.
13CA0066-M, 2013-Ohio-4380, ¶ 9. We find no abuse of discretion here.
{¶31} First, appellants waited to file their motion for an extension until the day the
objections were due. Moreover, they asked for an additional 30 days to prepare their
objections to the magistrate’s decision, a period well beyond the normal time allocated for
responding to a magistrate’s decision. Furthermore, although appellants’ counsel
asserted he needed more time because he was newly retained, the record reflects that
counsel had been working on the cases since October 11, 2016, when he entered
appearances in this court in appellants’ appeals of the trial court’s decisions granting
Woods Cove’s motions for summary judgment. Appellants did not dispute Woods
Cove’s assertion that appellants’ counsel had been working with Woods Cove since
October 2016 to resolve the matter. Accordingly, appellants did not demonstrate good
cause for an extension of time to file their objections to the magistrate’s decision, and the
trial court did not abuse its discretion in denying the motion. The third assignment of
error is overruled.
D. Motion to Reconsider
{¶32} After the trial court denied Papadelis’s motion for extension of time to file
his objections to the magistrate’s decision, but before the trial court had adopted the
magistrate’s decision, Papadelis filed a motion in Cuyahoga C.P. No. CV-14-836666
asking the court to reconsider its judgment granting Woods Cove’s motion for summary
judgment, and to reconsider its judgment denying the motion for extension, or in the
alternative, to vacate the magistrate’s decision. The trial court denied the motion to
reconsider. In the fourth assignment of error, Papadelis argues that the trial court erred
in denying his motion to reconsider.
{¶33} The Ohio Rules of Civil Procedure do not provide for a motion for
reconsideration after a final judgment in the trial court, and thus any judgment or order
regarding such a motion is a nullity. Cleveland Bd. of Zoning Appeals v. Abrams, 186
Ohio App. 3d 590, 2010-Ohio-1058, 929 N.E.2d 509, ¶ 23 (8th Dist.). A trial court has
inherent authority, however, to revise its interlocutory orders prior to its entry of a final
order. Miller v. Gen. Motors Corp., 8th Dist. Cuyahoga No. 55200, 1989 Ohio App.
LEXIS 1099, *8 (Mar. 30, 1989). Here, because the trial court had not yet adopted the
magistrate’s decision granting summary judgment and setting forth the judgment amount,
there was no final judgment, and the court could properly reconsider its interlocutory
orders. Nevertheless, we find no error in the trial court’s denial of the motion for
reconsideration.
{¶34} In his motion for reconsideration, Papadelis argued, as he does on appeal,
that the trial court improperly granted summary judgment to Woods Cove because (1) the
affidavit of Woods Cove’s agent attached to its motion for summary judgment
fraudulently failed to disclose payments Papadelis had made to Woods Cove; (2) Woods
Cove incorrectly calculated the interest due on Papadelis’s property; and (3) Woods
Cove’s calculation of attorney fees was unlawful.
{¶35} Papadelis’s motion for reconsideration raised new defenses to Woods
Cove’s motion for summary judgment that were not raised in either his answer to the
complaint or his motion for summary judgment and response to Woods Cove’s motion for
summary judgment. Papadelis’s answer and motion for summary judgment raised only
constitutional objections to Woods Cove’s foreclosure complaint; he did not dispute his
liability on the tax certificates, and made no arguments regarding alleged payments to
Woods Cove, the improper calculation of interest by Woods Cove, or attorney fees. As
the trial court stated in its journal entry denying the motion, Papadelis’s motion for
reconsideration was “an attempt to restructure the litigation” at a late date without filing a
proper pleading seeking to amend his answer to the complaint and counterclaim.
Accordingly, the trial court properly overruled the motion. The fourth assignment of
error is therefore overruled.
{¶36} Judgment affirmed.
It is ordered that appellee recover of appellants its costs herein.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
TIM McCORMACK, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR