Longworth v. Montgomery Cty. Treasurer , 2012 Ohio 4442 ( 2012 )

[Cite as Longworth v. Montgomery Cty. Treasurer, 2012-Ohio-4442.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CAMPHILL CONDOMINIUM OWNERS :
ASSN.
Plaintiff-Appellee : C.A. CASE NO. 25058
v. : T.C. NO. 08CV6129
LOUISE LONGWORTH, et al. : (Civil appeal from
Common Pleas Court)
Defendant-Appellant :
and :
MONTGOMERY COUNTY TREASURER :
Defendant-Appellee :
:
..........
OPINION
Rendered on the 28th day of September , 2012.
..........
WILLIAM H. MACBETH, Atty. Reg. No. 0014769, 401 E. Stroop Road, Kettering, Ohio
45429
Attorney for Plaintiff-Appellee
JIM LONGWORTH, 1337 Camphill Way No. 3, West Carrollton, Ohio 45449
Defendant-Appellant
GEORGE PATRICOFF, Atty. Reg. No. 0024506, 301 W. Third Street, 5th Floor, Dayton,
2
Ohio 45422Attorney for Defendant-Appellee
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of James
Longworth, filed, February 28, 2012. Longworth appeals from the trial court’s January 31,
2012 “Decision, Order and Entry Overruling Motion to Vacate,” which addressed multiple
filings by James, and the Camphill Condominium Owners Association (“CCOA”), relating
to the foreclosure by CCOA of its lien on a condominium where James resided in West
Carrollton. We hereby affirm the judgment of the trial court.
{¶ 2} The CCOA filed its Complaint in Foreclosure on July 3, 2008, alleging that
Louise Longworth, who died in 1995, was the record owner of Unit # 3 in Camphill
Condominium, and that James Longworth, Louise’s son, was in possession of the premises.
According to the complaint, James was in default of payment of the CCOA’s monthly
assessments and violations assessments, and that $15,764.25 was due for the period of
March, 2003 to February, 2006, which included $228.00 in attorney fees. The complaint
further alleged that an additional amount of $8,190.00 accrued for the period of March,
2006, through May, 2008, which included monthly charges of $200.00 in assessments,
$100.00 in assessment violations and a $15.00 late fee. The complaint alleged that said
charges will continue to accrue at the rate of $315.00 per month. According to the
complaint, CCOA filed Certificates of Lien on March 14, 2005, for $11,669.25, and on
October 10, 2007, for $10,065.00, which are valid and existing liens. The complaint sought
judgment in the amount of $23,954.25, plus attorney fees and interest, plus the additional
3
sum of $315.00 per month for assessments and late charges to become due during the
pendency of the action. The complaint also sought to have its liens foreclosed and the unit
appraised and sold. James, pro se, filed an answer and counterclaim, a motion to dismiss, an
amended answer, a motion for summary judgment, and a notice of bankruptcy filing.
CCOA filed a motion for summary judgment on December 8, 2008.
{¶ 3} On March 5, 2009, the trial court dismissed the matter without prejudice
due to the federal bankruptcy proceedings, and the matter was reactivated in June, 2009. In
July, 2009, the court again dismissed the matter without prejudice due to James’ second
bankruptcy filing, and it reactivated the matter in December, 2009, and referred the matter to
the magistrate.
{¶ 4} On June 4, 2010, following a trial, the magistrate issued a judgment and
decree of foreclosure. Based upon a stipulation by the parties, the magistrate granted
judgment in favor of CCOA in the principal sum of $35,000.00 plus interest, commencing
July 16, 2010, until the sale by the sheriff. No objections to the magistrate’s decision were
filed.
{¶ 5} The unit was set for Sheriff’s Sale on October 22, 2010, and the record
reflects that it was appraised at a value of $84,000.00. After the unit did not sell, the record
reflects that it was reappraised at $69,000.00, and set for Sheriff’s Sale on January 28, 2011.
Again, the unit did not sell.
{¶ 6} On March 18, 2011, the trial court issued a decision adopting the
magistrate’s decision, and James filed a Notice of Appeal. In April, 2011, the unit was
reappraised at $60,000.00. On May 17, 2011, James filed a motion to reopen case, in
4
which he asserted that the magistrate’s judgment of foreclosure was not “final and
enforceable” until adopted by the trial court, and that CCOA accordingly “caused the
property to be improperly scheduled for sheriff’s sale on multiple occasions.” The trial
court overruled the motion, finding it lacked jurisdiction due to James’ pending appeal.
James’ appeal was dismissed on July 21, 2011, upon his motion, and James filed a second
motion to reopen on July 26, 2011, as well as an amended motion, in which he requested
that the most recent appraisal be vacated and the first appraisal be applied to the sale.
CCOA opposed James’ amended motion. On August 10, 2011, James filed a motion to stay
the sale of the unit. The trial court issued an order granting James until August 26, 2011 to
file a motion to vacate judgment.
{¶ 7} James timely filed his motion to vacate judgment, and a Sheriff’s Sale set for
September 2, 2011 was cancelled. On September 21, 2011, James filed a motion for an
evidentiary hearing regarding his motion to vacate judgment, which CCOA opposed.
{¶ 8} In its decision overruling James’ motion to vacate, the court analyzed James’
motion pursuant to Civ.R. 60(B) as follows:
After a review of all of the Defendant’s filings, the following is the
only language arguably devoted to meeting the criteria set forth by Civ.R.
60(B) is as follows (sic):
And finally the defendant states that he has other
defenses related to the fact that the plaintiff based its case on
an invalid “boiler plate” contract that was intended for a
different and larger condominium community. The defendant
5
believes that, at trial, the court will find said contract
completely inapplicable to condominium complexes living
arrangements and entirely unenforceable. Any stipulations
the defendant may have made leading to judgment were not
made knowingly and willingly because of the defendant’s
extremely serious health conditions and powerful mind
altering medications.
* * * These conclusory statements that he has other defenses based on a
“boiler plate” contract that was intended for another condominium
community do not set forth operative facts, that if proven, would entitle the
sought after relief. Moreover, Defendant has not even attempted to
demonstrate that he is entitled to relief under one of the grounds stated in
60(B)(1) through (5). Therefore, Defendant is not entitled to have the
underlying judgment vacated in the instant action.
{¶ 9} Regarding the appraised value of the unit, the court determined as follows:
Plaintiff argues that if the property is ordered to be sold, the minimum
bid should be set relative to the originally appraised value of $84,000.00.
Plaintiff has attached a document from the Montgomery County Auditor
entitled “Official Notice, 2011 Property Value Update,” which explains that
“[t]he value of [the] property for assessment purposes has been tentatively
updated in accordance with Ohio law using mass appraisal techniques and an
analysis of real estate market activity over the last three years.” * * * The
6
valuation indicates a “Tentative 2011 Value” increase from $84,490 to
$88,580. Defendant has not cited legal authority to support his position that
this valuation, which is indicated as tentative, should be used over the
statutorily compiled appraisal report filed in this action. The mere fact that
the subject property was prematurely taken to sale does not change the fact
that it was offered relative to the higher values without success. Thus, to
reoffer the property at the higher value would be a futile endeavor.
The court overruled James’ motion to reopen and his motion to vacate, and it overruled his
motion for an evidentiary hearing as moot.
{¶ 10} We initially note that James’ brief does not comply with the requirements
of Rule 16 of the Ohio Rules of Appellate Procedure, which provides that an appellate brief
must contain a statement of the assignments of error presented for review, with reference to
the place in the record where each error is reflected, as well as a statement of the issues
presented for review. James asserts that the trial court confused the parties in its decision,
and further he requests that the unit be offered for sale at $84,000.00, the amount of the
original appraisal.
{¶ 11} As this Court has previously noted:
Civ.R. 60(B) permits trial courts to relieve parties from a final
judgment for the following reasons: (1) “mistake, inadvertence, surprise or
excusable neglect,” (2) newly discovered evidence, (3) fraud,
misrepresentation or other misconduct of an adverse party, (4) the judgment
has been satisfied, released or discharged, or (5) any other reason justifying
7
relief from the judgment. To prevail on a Civ.R. 60(B) motion, the movant
must show that (1) he has a meritorious defense or claim to present if relief
were granted; (2) he is entitled to relief under one of the grounds stated in
Civ.R. 60(B) (1) through (5), and (3) his motion is timely. GTE Automatice
Elec., Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113(1976), paragraph two of the syllabus. All three elements must be
established, and “the test is not fulfilled if any one of the requirements is not
met.” * * *. Fifth Third Bank v. Dayton Lodge Ltd. Liab. Co., 2d Dist.
Montgomery App. No. 24843, 2012-Ohio-3387, ¶ 20.
{¶ 12} We review the denial of James’ motion for an abuse of discretion. Id., ¶ 21.
As the Supreme Court of Ohio determined:
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to
be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result. AAAA Enterprises, Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
8
{¶ 13} Having thoroughly reviewed the record, we conclude that an abuse of
discretion is not demonstrated. R.C. 2329.17 provides that “three disinterested freeholders”
appointed by the sheriff shall provide an appraisal for purposes of foreclosure, and R.C.
2329.31 provides that the trial court may confirm the sale if it was made in compliance with
R.C. 2329.01 to 2329.61 “in all respects.” We note that the Civil Real Estate Appraisals in
the record are signed by a deputy sheriff and provide, “I certify that the above named
appraisers are disinterested freeholders, residents of Montgomery County and were duly
sworn to appraise impartially the above described premises, upon actual view.”
{¶ 14} The “best evidence of whether a public sale brings an adequate price is the
sale itself,” and the issue of inadequacy of price is properly raised after confirmation of the
sale. German Village Products Inc. v. Miller, 32 Ohio App.2d 288, 290 N.E.2d 855 (10th
Dist. 1972). We further agree with the trial court’s determination that increasing the price
of the unit after it did not sell at a lower price would be futile. Finally, we conclude that the
trial court’s alleged confusion of the parties in its judgment entry is an inadvertent
typographical error. In other words, James has failed to demonstrate that he is entitled to
relief under one of the grounds stated in 60(B)(1) through (5), and that he has a meritorious
defense to present if relief were to be granted.
{¶ 15} There being no merit to James’ assignments of error, the judgment of the
trial court is affirmed.
..........
FAIN, J. and HALL, J., concur.
Copies mailed to:
9
William H. Macbeth
Jim Longworth
George Patricoff
Hon. Dennis J. Langer