Johnson v. Ohio Dept. of Taxation , 2023 Ohio 4139 ( 2023 )

[Cite as Johnson v. Ohio Dept. of Taxation, 2023-Ohio-4139.]
IN THE COURT OF CLAIMS OF OHIO
NADINE JOHNSON Case No. 2022-00506JD
Plaintiff Judge Lisa L. Sadler
Magistrate Holly True Shaver
v.
DECISION
OHIO DEPARTMENT OF TAXATION
Defendant
{¶1} On June 28, 2022, Plaintiff filed a Complaint, asserting claims of fraud and
unjust enrichment. On August 11, 2023, Defendant filed a Motion for Summary Judgment
pursuant to Civ.R. 56(B). On September 11, 2023, Plaintiff filed a response. Pursuant to
L.C.C.R. 4(D), the Motion for Summary Judgment is now fully briefed and before the Court
for a non-oral hearing. For the reasons stated below, Defendant’s motion is GRANTED.
Standard of Review
{¶2} Motions for summary judgment are reviewed under the standard set forth in
Civ.R. 56(C), which states, in part:
Summary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to summary judgment as a matter of law. No evidence or stipulation
may be considered except as stated in this rule.
{¶3} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion and identifying those portions of the record before the trial court
which demonstrate the absence of a genuine issue of material fact on a material element
of the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d
264 (1996). To meet this initial burden, the moving party must be able to point to
Case No. 2022-00506JD -2- DECISION
evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293. “If the moving
party fails to satisfy its initial burden, the motion for summary judgment must be denied.”
Keaton v. Gordon Biersch Brewery Rest. Group, 10th Dist. Franklin No. 05AP-110, 2006-
Ohio-2438, ¶ 15.
{¶4} When the moving party makes a properly supported motion for summary
judgment, the adverse party may not rest upon the mere allegations or denials in the
pleadings but “by affidavit or as otherwise provided in [Civ.R. 56] must set forth specific
facts showing that there is a genuine issue for trial. If the party does not so respond,
summary judgment, if appropriate, shall be entered against the party.” Civ.R. 56(E). In
seeking and opposing summary judgment, parties must rely on admissible evidence and
evidentiary material as provided in Civ.R. 56(E). Keaton at ¶ 18. The Court must resolve
all doubts and construe the evidence in favor of the nonmoving party. Pilz v. Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 04AP-240, 2004-Ohio-4040, ¶ 8.
Facts
{¶5} On November 19, 2018, Plaintiff inherited property from the estate of her
mother-in-law, Mamie Johnson, through a Certificate of Transfer, which was recorded
with the Cuyahoga County Recorder’s Office. Complaint, ¶ 13-14. Richard S. Johnson,
Mamie Johnson’s son and Plaintiff’s husband, was the executor of Mamie Johnson’s
estate; however, he held no interest in the property. Id. at ¶ 11, 20.
{¶6} On December 21, 2020, Plaintiff sold the property to Najiy Sabir and recorded
the land installment contract with the Cuyahoga County Recorder’s Office. Id. at ¶ 15.
On December 22, 2021, a warranty deed was recorded with the Cuyahoga County
Recorder’s Office transferring title of the property from Plaintiff to Sabir. Id. at ¶ 17.
Heights Title Agency, Inc. (Heights Title) processed the warranty deed. Id. at ¶ 18.
Plaintiff asserts Heights Title improperly transferred a portion of the profits of the property
sale to Defendant, the Ohio Department of Taxation, to satisfy Richard S. Johnson’s tax
liens. Id. at ¶ 21. Plaintiff asserts that these funds were improperly transferred because
Richard S. Johnson has never held an interest in the property and therefore the funds
from the sale were not eligible to pay the tax liens. Id. at ¶ 20, 24. Plaintiff asserts claims
against Defendant for fraud and unjust enrichment. Id. at ¶ 27-40.
Case No. 2022-00506JD -3- DECISION
{¶7} In its Motion for Summary Judgment, Defendant asserts that, because it did
not make any representation to Plaintiff that she had to satisfy Richard S. Johnson’s debts
from the sale of the property, there can be no valid fraud claim as a matter of law.
Defendant’s Motion for Summary Judgment at p. 4. Furthermore, Defendant argues there
can be no valid unjust enrichment claim because it never received the funds as alleged
in Plaintiff’s complaint. Id. at p. 5.
Law and Analysis
Fraud
{¶8} For Plaintiff to establish her claim of fraud, she must prove the following
elements:
(a) a representation or, where there is a duty to disclose, concealment of a fact,
(b) which is material to the transaction at hand, (c) made falsely, with
knowledge of its falsity, or with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, (d) with the intent of
misleading another into relying upon it, (e) justifiable reliance upon the
representation or concealment, and (f) a resulting injury proximately caused by
the reliance.
{¶9} Morrow v. Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-
2665, 915 N.E.2d 696, ¶ 20 (10th Dist.).
Unjust Enrichment
{¶10} “To succeed in a claim for unjust enrichment, the trial court must find: ‘(1) a
benefit conferred by the plaintiff on the defendant, (2) knowledge of the benefit by the
defendant, and (3) retention of the benefit by the defendant in circumstances where it
would be unjust to do so.’” Longmire v. Danaci, 2020-Ohio-3704, 155 N.E.3d 1014, ¶ 32
(10th Dist.), quoting Lundeen v. Smith-Hoke, 10th Dist. No. 15AP-236, 2015-Ohio-5086,
¶ 51.
{¶11} In support of its motion, Defendant filed the affidavit of Andrew Littlefield,
Deputy Director of Resolutions for the Attorney General’s Office, who avers, in relevant
part, as follows:
Case No. 2022-00506JD -4- DECISION
3. Pursuant to R.C. 131.02, the Attorney General is tasked with
collecting final outstanding debt owed to the State of Ohio for state
agencies, institutions, boards, commissions, public university [sic] and
hospitals, and local government entities. These debts include certified
liabilities associated with tax liens.
4. Title companies frequently request lien payoff information
from the Attorney General regarding outstanding liens associated with
parties to real estate transactions. This is to insure the transfer of title is not
encumbered with a pre-existing lien.
5. On or about December 22, 2021, the Attorney General
received a Request for Payoff Information Form (“Form”) from Heights Title
Agency, Inc. A true and accurate copy of that document is attached to this
Affidavit.
6. The Request for Payoff Information Form is a release,
allowing the Attorney General to disclose information about an individual’s
debts to third parties. When the Attorney General responds to such a
request, it does not take a position on whether those liens encumber a
particular piece of property. The Attorney General only provides the
information to requestor as authorized by the individual.
7. The Form was signed by Richard S. Johnson and authorized
the release of information to Heights Title Agency, Inc.
8. In January 2022, the Attorney General released its response
to Heights Title Agency, Inc’s request. The response itemized debts owed
by Richard S. Johnson to the State of Ohio and provided reference numbers
for those debts.
9. Since sending out the response, the Attorney General has no
record of receiving funds from Heights Title Agency, Inc., or anyone else, to
satisfy any of Richard S. Johnson’s outstanding debts to the State of Ohio.
Defendant’s Exhibit B.
{¶12} Included as an attachment to Defendant’s Answer is a copy of the Request
for Payoff Information form, which was received by Defendant via fax on December 22,
Case No. 2022-00506JD -5- DECISION
2021. The Request for Payoff Information form is signed by Richard S. Johnson, gives
permission for Defendant to release to Heights Title (1) information related to debts owed
to the State of Ohio which have been certified to the Attorney General for collection and
(2) documents which effect a release of liens related to those debts. The attachments to
the form include printouts of two judgment liens in Cuyahoga County, Ohio for an
individual named Spencer Johnson.
{¶13} Defendant also filed Plaintiff’s responses to Defendant’s First Set of
Interrogatories, Requests for Admissions, and Requests for Production of Documents.
Defendant’s Exhibit A to its Motion for Summary Judgment. In the Requests for
Admissions, Plaintiff admits that she has no personal knowledge that Heights Title paid
any funds to the Ohio Department of Taxation, that she never gave any funds directly to
the Ohio Department of Taxation, and that her assertion that the Ohio Department of
Taxation improperly accepted payment of “tax/judgment liens” is solely based on
representations made by Heights Title. Id.{¶14} Based on the foregoing, Defendant has identified evidentiary materials of the
type listed in Civ.R. 56(C) that demonstrate the absence of a genuine issue of material
fact on a material element of Plaintiff’s claims. Specifically, as to the fraud claim,
Defendant has shown that it responded to a form from Heights Title signed by Richard S.
Johnson who authorized the release of itemized debts owed by Richard S. Johnson to
the State of Ohio. The affidavit establishes that the information was not made falsely.
Moreover, the affidavit shows that Defendant never made a material representation to
Plaintiff or Heights Title that it was entitled to Plaintiff’s funds from the property sale. In
fact, Plaintiff’s name does not appear on the Request for Payoff Information Form signed
by Richard S. Johnson. As to the unjust enrichment claim, the affidavit establishes that
the Attorney General has no record of receiving funds from Heights Title or anyone else
to satisfy any of Richard S. Johnson’s outstanding debts to the State of Ohio. Therefore,
Defendant has pointed to evidence to show that it has not retained a benefit from Plaintiff.
{¶15} Because Defendant met its burden to show there is no genuine issue as to
any material fact, the burden, viewing the evidence most favorably in Plaintiff’s favor,
shifts to Plaintiff to set forth specific facts showing that there is a genuine issue for trial.
Civ.R. 56(E). In response to Defendant’s motion, Plaintiff asserts that Defendant received
Case No. 2022-00506JD -6- DECISION
the payment from Heights Title because Heights Title “stated it paid and the Defendant
accepted payment of the aforementioned tax/judgment liens,” and thus was unjustly
enriched. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary
Judgment, p. 9. In addition, Plaintiff filed her own affidavit, wherein she states, in relevant
part:
12. Based upon information and belief, Heights Title paid and the
Department of Taxation improperly accepted payment of the
aforementioned tax/judgment liens as a condition for the closing of the real
estate transaction between Najiy Sabir and me.
13. In addition, upon information and belief, Heights Title paid
$11,065.19 to the Cuyahoga County Treasurer for alleged 2020 taxes and
alleged delinquencies related to the Property.
14. No paperwork signed was ever notarized by and/or with me
or Richard S. Johnson.
15. It is my belief that the aforementioned alleged debts were not
proper liens of record or encumbrances that were subject to payment out of
the proceeds under the terms of the escrow agreement and/or other
agreement and/or understanding of the relevant parties.
16. As a result of the improper payments, I only received
$43,500.00 in proceeds from the sale of the Property to Najiy Sabir.
17. A federal IRS Form 1099-S using my social security number,
but under the name of Mr. Johnson, was also improperly issued.
Plaintiff’s Exhibit A.
{¶16} Civ.R. 56(E) states that “affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated in the affidavit.” “Personal
knowledge is knowledge gained through firsthand observation or experience, as
distinguished from a belief based on what someone else said.” State ex rel. Anderson v.
The Vill. of Obetz, 10th Dist. Franklin No. 06AP-1030, 2008-Ohio-4064, at ¶ 22 (internal
citations omitted).
Case No. 2022-00506JD -7- DECISION
{¶17} In Plaintiff’s affidavit, she asserts that the statements supporting claims of
Defendant’s alleged fraud and unjust enrichment were based on “information and belief”
rather than personal knowledge. Nadine Johnson Affidavit, ¶ 12. Furthermore, Plaintiff’s
belief is based on information obtained from Heights Title. Since these representations
were made by a third party and do not arise from Plaintiff’s personal knowledge of
Defendant’s actions, they are invalid to show that an issue of material fact exists. Plaintiff
has not submitted any other evidence to support her claims. Although Plaintiff contends
that Defendant accepted payment from Heights Title for the judgment liens, Plaintiff has
not provided the Court with any documentation to support that claim. Plaintiff’s
memorandum and attached affidavit do not point to corroborative evidence that an issue
of material fact exists regarding the elements of fraud or unjust enrichment.
{¶18} Plaintiff argues Defendant is not entitled to summary judgment because
Defendant did not provide any evidence contrary to Plaintiff’s assertions for the fraud
claim. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary
Judgment, p. 7. Plaintiff thus asserts that, because Defendant did not present evidence
that it did not receive the funds, an issue of material fact remains. This is not so. Pursuant
to Civ.R. 56(E), Defendant submitted the affidavit of Andrew Littlefield wherein he attests
Defendant has no record of receiving any funds from Plaintiff or Heights Title.
Defendant’s Exhibit B, ¶ 9. This affidavit is sufficient evidence to establish that no funds
were received by Defendant. Plaintiff has presented no documentation to show that
Defendant received proceeds from the sale of the property, or any other evidence that
the transaction ever occurred. Although the Request for Payoff Information Form is
signed by Richard S. Johnson and pertains to the property that Plaintiff claims was solely
bequeathed to her, Plaintiff’s name does not appear on the form. At most, the evidence
shows that Defendant responded to a Request for Payoff Information Form initiated by
Richard S. Johnson and Heights Title. The affidavit of Littlefield shows that when the
Attorney General responds to such a request, it does not take a position on whether the
liens encumber a particular piece of property. Because the evidence does not show that
Defendant represented to Plaintiff that it was entitled to receive funds from the sale of her
property or that Defendant ever received any funds from the sale of her property,
Case No. 2022-00506JD -8- DECISION
reasonable minds can conclude only that there are no genuine issues of material fact and
that Defendant is entitled to summary judgment as a matter of law.
{¶19} Defendant met its initial burden, pursuant to Civ.R. 56(C), to demonstrate
that there is no genuine issue as to any material fact that it made any fraudulent
representation to Plaintiff or Heights Title that it was entitled to proceeds from the property
sale, or that it was unjustly enriched from the property sale. However, Plaintiff did not
meet her reciprocal burden, pursuant to Civ.R. 56(E), to set forth specific facts showing
that there is a genuine issue of material fact for trial. Accordingly, Defendant is entitled
to judgment as a matter of law and its Motion for Summary Judgment is GRANTED.
Conclusion
{¶20} For the reasons stated above, Plaintiff did not present sufficient evidence to
demonstrate that there are triable issues of material fact. See Mitchell v. Mid-Ohio
Emergency Servs., LLC, 10th Dist. Franklin No. 03AP-981, 2004-Ohio-5264, 12, citing
Turner v. Turner, 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (“In the summary judgment
context, a ‘material’ fact is one that might affect the outcome of the suit under the
applicable substantive law.”). For the reasons set forth above, Defendant’s Motion for
Summary Judgment is GRANTED.
LISA L. SADLER
Judge
[Cite as Johnson v. Ohio Dept. of Taxation, 2023-Ohio-4139.]
NADINE JOHNSON Case No. 2022-00506JD
Plaintiff Judge Lisa L. Sadler
Magistrate Holly True Shaver
v.
JUDGMENT ENTRY
OHIO DEPARTMENT OF TAXATION
Defendant
IN THE COURT OF CLAIMS OF OHIO
{¶21} A non-oral hearing was conducted in this case upon Defendant’s Motion for
Summary Judgment. For the reasons set forth in the decision filed concurrently herewith,
Defendant’s Motion for Summary Judgment is GRANTED and judgment is rendered in
favor of Defendant. All previously scheduled events are VACATED. Court costs are
assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.
LISA L. SADLER
Judge
Filed October 27, 2023
Sent to S.C. Reporter 11/16/23