Yemma v. Reed

[Cite as Yemma v. Reed, 2017-Ohio-1015.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DANIEL R. YEMMA, TREASURER, ) CASE NO. 16 MA 0015
OF MAHONING COUNTY, OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
LISA REED aka, LISA A. REED, et al., )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 2014 CV 2545
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Thomas N. Michaels
Assistant Prosecuting Attorney
21 W. Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Bruce M. Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 20, 2017
[Cite as Yemma v. Reed, 2017-Ohio-1015.]
ROBB, P.J.
{¶1} Appellant Mathew Turner appeals the decision of the Mahoning County
Common Pleas Court denying his motion to intervene in a tax foreclosure action filed
by Appellee Daniel R. Yemma as Treasurer of Mahoning County, Ohio. If he is
successful on intervention, Appellant also contends the court abused its discretion in
alternatively denying his motion for relief from the foreclosure decree. For the
following reasons, the trial court’s decision denying Appellant’s motion to intervene is
affirmed. As such, the motion for relief from judgment need not be addressed.
STATEMENT OF THE CASE
{¶2} On October 8, 2014, the Treasurer filed a tax foreclosure action against
Lisa Reed, the record owner of property located at 128 S. Maryland Avenue in
Youngstown. The action was brought under R.C. 323.25, R.C. 5721.18, and/or R.C.
323.78. The complaint asserted more than a year had passed since the taxes on the
property were certified delinquent. The amount due was $2,673.95. After adding the
costs of action, the amount owed was alleged to exceed the fair market value of the
property. The property was said to be abandoned land under R.C. 323.65,
nonproductive land under R.C. 5722.01, and/or delinquent vacant land under R.C.
5721.01. The Treasurer elected to invoke the alternative redemption period set forth
in R.C. 323.78. The complaint also provided notice in the event title was requested
by an electing subdivision, such as a county land reutilization corporation.
{¶3} Certified mail service was attempted at Ms. Reed’s tax mailing address
(on South Turner Road) and an alternate address (on Barrington Drive). Both were
unsuccessful. An attempt was then made at an address on Rosemont Avenue,
which was returned with the notation “refused.” The summons and complaint were
then sent by regular mail to the Rosemont address.
{¶4} On January 28, 2015, the assistant prosecutor representing the
Treasurer filed an affidavit for service by publication, citing R.C. 5721.18(A) which
permits service of notice by publication for three consecutive weeks. He stated the
whereabouts of Ms. Reed were unknown and could not be ascertained with
reasonable diligence; he outlined his efforts. Notice of the suit, which included the
property address, was published for three weeks. Service by publication was
completed on February 26, 2015.
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{¶5} On April 2, 2015, the Treasurer filed a motion for default judgment,
attaching the tax duplicate which showed the current delinquent amount of
$3,221.98. The Treasurer also filed a motion to convey title to Mahoning County
Land Reutilization Corporation without appraisal and sale, citing R.C. 323.65(K) and
R.C. 323.78. The assistant prosecutor’s affidavit was attached to show Mahoning
County Land Reutilization Corporation requested title. A hearing was set for May 4.
{¶6} On May 5, 2015, the court issued a decree of foreclosure. The court
found: the property qualified as nonproductive land under R.C. 5722.01(F) and
abandoned land under R.C. 323.65(A); Mahoning County Land Reutilization
Corporation elected to acquire the property; the Treasurer invoked the alternative
redemption period pursuant to R.C. 323.78(A); $3,221.98 was due for delinquent
taxes and other impositions, which represented a first and best lien; and the
Treasurer was entitled to have this lien foreclosed under Chapter 5721.
{¶7} The sheriff was ordered to prepare a deed at the end of the 28-day
alternative redemption period if the property was not redeemed. The decree
announced that unless the defendant or any other party in interest caused to be paid
the amount due and the costs of the action prior to the expiration of the 28-day
alternative redemption period, the equity of redemption shall be extinguished and title
to the property shall be transferred to Mahoning County Land Reutilization
Corporation without any further confirmation by the court. See R.C. 323.28(E); R.C.
323.78(B); R.C. 5721.19(I). The court’s order advised that title shall not be invalid
because of any irregularity, informality, or omission of any proceeding under the tax
foreclosure statutes or in any taxation process if such irregularity, informality, or
omission does not abrogate any provision of such chapters for notice to holders of
title, lien or mortgage to, or other interests in the foreclosed land. See R.C.
5721.19(F)(4).
{¶8} The property was not redeemed within the 28-day alternative
redemption period, which expired on June 2, 2015. Consequently, title to the
property was transferred to Mahoning County Land Reutilization Corporation.
{¶9} On November 20, 2015, Appellant Mathew Turner filed a motion to
intervene in the action claiming he was the owner of the property. The motion stated:
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an inspection of the real property would have revealed it was occupied; he was not
named as an unknown occupant defendant; and service was not attempted on Lisa
Reed at the subject property.
{¶10} Appellant’s affidavit attested that he purchased the property from Lisa
Reed on July 28, 2012 for $5,000. He attached a copy of a notarized deed. In the
deed, Lisa Reed listed 128 S. Maryland Avenue as the property she was selling and
as her address. The deed noted the sale of the property was subject to existing
taxes and contained an instruction to mail tax statements to Matt Turner at 128 S.
Maryland Avenue. Appellant’s affidavit also stated:
After I received the Deed from Lisa Reed I went to the Mahoning
County Courthouse and attempted to record the Deed. A
representative of the [sic] Mahoning County would not accept the Deed
for recording and stated that I could not record the Deed as there were
real estate taxes owed on the real property. I then began to pay the
owners of the tax certificates for the delinquent Real Estate taxes; and I
paid entities known as Net Relations, SAFE, and OKT LI. (Paragraph
numbers omitted).
{¶11} Appellant said he hung curtains, started repairs to the house, and kept
personal belongings at the premises. For instance, he said he had property in the
yard and driveway, such as a camper. He said he was unaware of the foreclosure
litigation until October 2015, when he saw a van from Mahoning County Land
Reutilization Corporation in the driveway and decided to call to ascertain why.
Appellant’s affidavit explained: “If I am allowed to, I intend to bring the real estate
taxes current by entering into a written contract for the repayment of delinquent real
estate taxes.”
{¶12} We note this affidavit was attached to a Civ.R. 60(B) motion rather than
the motion to intervene. Still, both motions were filed on the same day. In his Civ.R.
60(B) motion, he argued the request was filed within a reasonable time as less than
seven months passed since the May 5, 2015 foreclosure decree and he had no
knowledge of the decree until October 2015. As for a meritorious defense, Appellant
asserted a right to occupy the premises pursuant to the Protecting Tenants at
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Foreclosure Act of 2009 (“PTFA”) as a purchaser at a sheriff’s sale takes the property
subject to the tenant’s rights (unless the purchaser intends to use it as his primary
residence).1
{¶13} Appellant’s motion for relief from judgment said he was the owner who
would have been named a defendant in the foreclosure action if a county
representative had not prevented him from recording his deed due to past due taxes.
He also said he would have received notice if service had been attempted at the
property address, stating: the Treasurer failed to visit the property; a visit would have
provided knowledge the property was occupied; and any unknown occupant should
have been made a party to the action. Appellant’s motion claimed entitlement to
relief under Civ.R. 60(B)(4) (“it is no longer equitable that the judgment should have
prospective application”) or (5) (“any other reason justifying relief from the
judgment”).
{¶14} The Treasurer filed a memorandum in opposition to both motions. As
to intervention, the Treasurer argued the motion to intervene should be denied based
on the following considerations: it was not accompanied by a pleading as required by
Civ.R. 24(C); it was untimely; permitting intervention after final judgment is unusual;
the deed said he was taking the land subject to taxes; he knew in 2012 that taxes
were already delinquent; and he made no effort to pay taxes or to initiate a payment
plan. The Treasurer noted a denial of intervention would render the motion for relief
from judgment moot as a non-party cannot seek relief under Civ.R. 60(B).
{¶15} Alternatively, in opposing the motion for relief from judgment, the
Treasurer argued (B)(4) does not apply as the circumstances raised by Appellant
occurred prior to the entry judgment and a foreclosure action was foreseeable due to
the failure to pay taxes. The Treasurer stated there were no extraordinary
circumstances as required for application of (B)(5). The Treasurer urged the property
owner must provide the Treasurer with any change in address for a tax bill under
R.C. 323.13. See J. Terry Evans Licking Cty. Treasurer v. Jallaq, 5th Dist. No.
95CA-127 (Aug. 22, 1996) (the Treasurer accomplished sufficient service of process
1 Appellant’s motion also argued the final judicial report was untimely under R.C. 2329.191. The
Treasurer responded that this statute does not apply when the county is foreclosing on a property tax
lien for the state, citing R.C. 2329.22. Appellant’s argument on this topic is not maintained on appeal.
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where the Treasurer complied with R.C. 5721.18(A) in effecting service and the
property owner did not comply with R.C. 323.13). The Treasurer also argued a
property visit is not a prerequisite to the filing of a tax foreclosure action.
{¶16} Even assuming Appellant attempted to record the deed and was
rejected, the Treasurer notes Appellant could have filed a mandamus action against
the recorder or recorded an affidavit of facts relating to title. See R.C. 5301.252.
See also R.C. 323.68(B). It was noted Appellant failed to explain why he never paid
taxes or attempted to enter a payment plan since he purchased the property in 2012.
{¶17} Regarding the PTFA, the Treasurer responded: Appellant claims to be
the owner, not a tenant; Appellant failed to show a “bona fide lease or tenancy” under
the act; the act deals with mortgage foreclosures, not tax foreclosures; the act’s
sunset date passed by the time of the May 5, 2015 foreclosure decree and the June
15, 2015 property transfer; and the act calls for notice based upon the date the title is
transferred by the foreclosure action.
{¶18} The trial court scheduled a hearing for January 6, 2016. On January 8,
2016, the court overruled the motion to intervene and the motion for relief from
judgment. Appellant filed a timely notice of appeal from this judgment.
ASSIGNMENT OF ERROR
{¶19} Appellant’s sole assignment of error provides:
“The trial court abused its discretion in denying the motion to intervene and the
motion for relief from judgment.”
{¶20} We begin with the denial of the motion to intervene. Appellant cites
Civ.R. 24(A), which provides for intervention as a matter of right as follows:
Upon timely application anyone shall be permitted to intervene in an
action: (1) when a statute of this state confers an unconditional right to
intervene; or (2) when the applicant claims an interest relating to the
property or transaction that is the subject of the action and the applicant
is so situated that the disposition of the action may as a practical matter
impair or impede the applicant's ability to protect that interest, unless
the applicant's interest is adequately represented by existing parties.
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{¶21} Appellant states he had an interest in the property subject to litigation
and his rights were not adequately protected. In arguing his post-judgment motion to
intervene was timely, he relies on this court’s Laviena case.
{¶22} In that case: a gunshot victim sued a shooter; the shooter submitted a
claim to his insurer; the shooter’s insurer filed a declaratory judgment action against
him urging there was no duty to defend or indemnify the shooter due to an intentional
act; and the trial court entered default judgment in favor of the insurer after the
shooter failed to answer. State Farm Fire & Cas. Co. v. Laviena, 7th Dist. No. 04-
MA-176, 2005-Ohio-6601, ¶ 2-3. Ten days later, the victim filed a motion to intervene
and a motion for relief from judgment. Id. at ¶ 4. The magistrate permitted
intervention but denied relief from judgment. Id. The trial court sustained the victim’s
objections to the magistrate’s decision, granted the motion for relief from judgment,
and vacated the default judgment. Id. at ¶ 5.
{¶23} The insurer appealed, arguing the trial court abused its discretion in
granting relief from judgment as the victim failed to demonstrate a meritorious
defense. Id. at ¶ 7. We disagreed, noting the Civ.R. 60(B) motion referred to the
motion to intervene, which contained the victim’s complaint filed in the action against
the shooter and which alleged negligence in the shooting (constituting a merit
defense to the insurer’s declaratory judgment action). Id. at ¶ 18-21. We concluded
the trial court did not abuse its discretion in granting relief from judgment. Id. at ¶ 21.
{¶24} Notably, the decision on the motion to intervene was not before this
court in Laviena, which was an appeal from the subsequent decision to vacate a
judgment. In any event, a trial court’s granting of a motion to intervene in one case
does not translate into precedent that a motion to intervene must be granted in
another case. Factually, we note the post-judgment difference between 10 days and
6.5 months. Additionally, discretionary review can properly result in varying results
among an array of different cases.
{¶25} As the parties agree, the standard of review of a trial court’s decision on
a motion to intervene is abuse of discretion. State ex rel. Merrill v. ODNR, 130 Ohio
St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41, citing State ex rel. First New Shiloh
Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998), fn. 1.
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Although Civ.R. 24 should be construed liberally in favor of granting intervention, we
cannot reverse unless the court’s decision was unreasonable, arbitrary, or
unconscionable. State ex rel. Merrill, 130 Ohio St.3d 30 at ¶ 41; State ex rel. First
New Shiloh Baptist Church, 82 Ohio St.3d at 503.
{¶26} The Ohio Supreme Court emphasizes the opening phrase in Civ.R.
24(A), “Upon timely application * * *.” State ex rel. First New Shiloh Baptist Church,
82 Ohio St.3d at 502. The timeliness of the intervention motion depends upon the
facts and circumstances of each case. Id. at 503. Some factors to consider when
evaluating the timeliness of a motion to intervene include: (1) the stage of the case;
(2) the reason behind intervention; (3) the amount of time before the application
during which the movant knew or reasonably should have known of his interest in the
case; (4) the prejudice to the original parties due to the movant’s failure to apply
promptly for intervention after he knew or reasonably should have known of his
interest in the case; and (5) the existence of unusual circumstances weighing in favor
or against intervention. Id., citing Triax Co. v. TRW, Inc., 724 F.2d 1224, 1228 (6th
Cir.1984).
{¶27} In relation to the first factor, “Intervention after final judgment has been
entered is unusual and ordinarily will not be granted.” State ex rel. First New Shiloh
Baptist Church, 82 Ohio St.3d at 503-504. On a post-judgment motion, an additional
consideration can be the propriety of the trial court’s judgment in the case. Id. at 504
(“Finally, it appears that even if appellants had been granted leave to intervene, the
court of appeals' judgment granting the writ was appropriate.”). As to the second
factor, the purpose of intervention should be compelling. Id. (where intervention
would result only in reconsideration of prior issues, it is not compelling).
{¶28} This case involves a post-judgment motion to intervene. It was filed 6.5
months after the foreclosure decree was journalized. A separate confirmation order
was not required as the title was ordered to transfer and vest upon the expiration of
28 days from the court’s order. See R.C. 323.28(E); R.C. 5721.19(I) (“the filing for
journalization of a decree of foreclosure ordering that direct transfer without appraisal
or sale shall constitute confirmation of the transfer and thereby terminate any further
statutory or common law right of redemption.”). See also R.C. 323.78(B).
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{¶29} The tax foreclosure action had been pending for 7 months before the
entry of the foreclosure decree. Prior to the filing of the complaint, over a year had
passed since the taxes on the property were certified delinquent. Appellant filed the
motion to intervene on November 20, 2015. Within the motion, he claimed he was
unaware of the action until October 2015. He did not estimate a date within October
that he saw Mahoning County Land Reutilization Corporation’s van in the driveway.
{¶30} Appellant produced a deed whereby he claims to have purchased the
property in mid-2012. Yet, he paid no property taxes to the county thereafter, and
apparently taxes were already delinquent at the time he purchased the property.
Service was made on the record owner by publication after an effort to serve the
record owner at her tax mailing address and two other addresses failed. An affidavit
listing the assistant prosecutor’s efforts to search for another alternate address for
the record owner was provided. The suit was advertised for three consecutive weeks
as per R.C. 323.25 and R.C. 5721.18(A). The property address was specifically
listed in the advertisement. Appellant’s motion did not claim that a “provision for
notice” in a relevant tax foreclosure may have been “abrogate[d]” or cite any such
provision. See R.C. 5721.19(F)(4).
{¶31} Appellant knew from the beginning that the deed under which he
claimed title had never been recorded. No property owner provided the Treasurer
with a change of tax mailing address as required by R.C. 323.13. The Treasurer
argued below that if his claim (about being denied recording merely due to unpaid
taxes) was true, then he had years during which he could have filed a writ of
mandamus against the recorder or filed an affidavit of facts relating to title under R.C.
5301.252. Appellant was not identifiable as a record owner at the time the action
was filed or throughout the proceedings. This is not to say any of these facts are
dispositive. Rather, they are collectively considered in evaluating the trial court’s
exercise of discretion.
{¶32} Next, Appellant’s motion to intervene expressed his purpose for
intervention was to file a motion for relief from judgment after which he would seek to
redeem the property by entering into a written contract for repayment of delinquent
taxes pursuant to R.C. 323.31. A delinquent tax contract can be entered after the
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foreclosure action is filed in order to avoid the transfer of title. See R.C. 323.31(A)(3)
(“The delinquent tax contract described in division (A) of this section may be entered
into at any time prior to an adjudication of foreclosure * * *”). See also R.C.
323.25(B) (the county treasurer shall not enforce the lien for taxes against real
property that is the subject of a valid delinquent tax contract under R.C. 323.31 which
the county treasurer has not certified as void).
{¶33} However, the statute requires one opportunity to enter a delinquent tax
contract with the Treasurer and only when a person owns and occupies residential
real property and the property does not have an outstanding tax lien certificate (or
judgment of foreclosure) against it. R.C. 323.31(A)(1) (“Subsequent opportunities to
enter into a delinquent tax contract shall be at the county treasurer's sole
discretion.”). Appellant’s affidavit acknowledges any contract was speculative: “If I
am allowed to, I intend to bring the real estate taxes current by entering into a written
contract for the repayment of delinquent real estate taxes.” Appellant’s filings did not
address his eligibility for a delinquent tax contract.
{¶34} The motion to intervene filed by Appellant’s attorney says Appellant
“began residing in the real property * * *.” Yet, Appellant’s affidavit merely speaks of
property in the yard and driveway (including a camper) and says he moved personal
belongings into the house and was making repairs. It does not say he occupied the
property or it was physically inhabited as a dwelling. See, e.g., R.C. 323.31(A)(1);
R.C. 323.65(F)(1)(a). Additionally, Appellant’s affidavit says he began paying the
owners of tax certificates for delinquent taxes when he bought the property. As the
Treasurer points out, Appellant did not claim “the property does not have an
outstanding tax lien certificate.” See R.C. 323.31(A)(1).
{¶35} We also note that Appellant did not mention the property’s soundness.
Pursuant to R.C. 323.25 and R.C. 5721.25, any person entitled to redeem the land
may do so, before the expiration of the applicable redemption period, by tendering
the appropriate amount to the county treasurer “and by demonstrating that the
property is in compliance with all applicable zoning regulations, land use restrictions,
and building, health, and safety codes.”
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In addition, after a foreclosure proceeding has been instituted, but
before the filing of an entry of confirmation of sale pursuant to the
proceeding or before the expiration of the alternative redemption period
as may apply under section 323.78 of the Revised Code, any person
entitled to redeem the land who has not previously defaulted on a
delinquent tax contract under section 323.31 of the Revised Code with
respect to that delinquent land may enter into a delinquent tax contract
with the county treasurer for the payment of the taxes, assessments,
penalties, interest, and charges found to be due and unpaid on such
land, together with the costs incurred in the proceeding as determined
by the court or board of revision, upon demonstrating that the property
is in compliance with all applicable zoning regulations, land use
restrictions, and building, health, and safety codes. The execution of a
delinquent tax contract shall not stop the prosecution of a proceeding to
judgment. The delinquent tax contract shall be paid as prescribed by
section 323.31 of the Revised Code over a period not to exceed five
years after the date of the first payment made under the contract. The
delinquent tax contract may be terminated if the court or board of
revision determines that the property is not in compliance with all
applicable zoning regulations, land use restrictions, and building,
health, and safety codes during the term of the contract. The court or
board of revision shall retain jurisdiction over the delinquent land until
the total amount set forth in the delinquent tax contract is paid,
notwithstanding any conveyance of the land to another owner during
the period that the delinquent tax contract is outstanding.
(Emphasis added). R.C. 5721.25.
{¶36} Although the above analysis would pertain to Appellant failing to set
forth operative facts in support of a meritorious defense under his Civ.R. 60(B)
motion, the purpose of seeking to intervene is also a consideration in reviewing a
motion to intervene (as is the inevitably of the court’s decision). See State ex rel.
First New Shiloh Baptist Church, 82 Ohio St.3d at 503-504. The trial court would not
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abuse its discretion in finding the purpose of intervention expressed in Appellant’s
motion to intervene was not “compelling.” Id.
{¶37} A less compelling reason for his requested intervention is expressed in
the motion for relief from judgment and reiterated on appeal as his second argument
in support of a meritorious defense.2 The remaining meritorious defense raised in
Appellant’s brief is he would avail himself of the federal PTFA if the motion for relief
from the foreclosure judgment is granted. See Protecting Tenants at Foreclosure Act
of 2009, Pub.L. No. 111-22, Section 701-704, 123 Stat. 1632, 1661 (formerly codified
at 12 U.S.C. 5220).
{¶38} As the Treasurer emphasizes, Appellant claims to be the owner, not a
tenant. Appellant replies that since he was not permitted to record his deed, he
should at least be considered a tenant and his $5,000 purchase price can be
considered rent as required for a bona fide tenancy under the Section 702(b)(3) of
the PTFA.
{¶39} The parties dispute whether the PTFA applies to tax foreclosures. The
Treasurer urges it only applies to foreclosures on mortgages as it is part of a larger
act dealing with the prevention of mortgage foreclosures. In addition, the PTFA
requires a bona fide lease or tenancy, which only exists “if the mortgagor or the child,
spouse, or parent of the mortgagor under the contract is not the tenant” plus two
other elements. Section 702(b)(1).
{¶40} Regardless, the PTFA provided for notice to vacate to a bona fide
tenant and a right to occupy the premises until the end of the lease term in the case
of a bona fide lease. Section 702(a)(1)-(2). See also Mik v. Federal Home Loan
Mtge. Corp., 743 F.3d 149, 157 (6th Cir.2014) (“The PTFA protects tenants who
reside in properties that are subject to foreclosure by imposing certain obligations on
successors in interest to foreclosed properties.”). Appellant does not explain how the
PTFA could provide a defense to a foreclosure action or a reason to intervene in the
action.
2Appellant’s motion for relief from judgment used the same arguments for the meritorious defense
prong as were used for the entitlement to relief prong. On appeal, he distinguishes between the
prongs and divides his arguments accordingly. The argument section of Appellant’s brief lists two
proposed meritorious defenses: he would enter a delinquent tax contract to prevent transfer of title;
and the PTFA provides protections. (Appellant’s Brief at 6-7).
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{¶41} Furthermore, the PTFA had a sunset date. Pursuant to Section 704,
“This title, and any amendments made by this title are repealed, and the
requirements under this title shall terminate on December 31, 2012.” As Appellant
acknowledges, the sunset date was later extended but only through December 31,
2014. See Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub.L.
111-203, Section 1484(2), 124 Stat. 1376, 2204 (2010). See also id. at Section
1484(1)(B) (providing that the date of a notice of foreclosure is the date on which
complete title to the property is transferred to a successor as a result of a court
order).
{¶42} The foreclosure decree here was entered on May 5, 2015, and the
property transfer occurred after the 28-day alternative redemption period (starting on
the May 5 journalization of the decree). Consequently, Appellant’s citation to the
PTFA does not set forth operative facts showing he has a meritorious defense to
present if relief from foreclosure were to be granted and does not provide a
compelling reason for intervention more than six months after the foreclosure decree.
{¶43} “Intervention after final judgment has been entered is unusual and
ordinarily will not be granted.” State ex rel. First New Shiloh Baptist Church, 82 Ohio
St.3d at 503-504. Considering all of the facts and circumstances of this case
pertinent to the intervention motion, the trial court properly exercised its discretion in
denying Appellant’s motion to intervene.
{¶44} The trial court’s decision is also supported procedurally. On the same
day Appellant filed a motion to intervene, he filed a motion for relief from judgment
and an affidavit. No pleading was ever filed to accompany the motion to intervene.
As the Treasurer points out, Civ.R. 24(C) provides: “The motion and any supporting
memorandum shall state the grounds for intervention and shall be accompanied by a
pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which
intervention is sought.” (Emphasis added).
{¶45} Civ.R. 24(C) specifically cites Civ.R. 7(A) for the definition of a pleading.
Pursuant to Civ.R. 7(A):
There shall be a complaint and an answer; a reply to a counterclaim
denominated as such; an answer to a cross-claim, if the answer
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contains a cross-claim; a third-party complaint, if a person who was not
an original party is summoned under the provisions of Civ.R. 14; and a
third-party answer, if a third-party complaint is served. No other
pleading shall be allowed, except that the court may order a reply to an
answer or a third-party answer.
Notably, the prior version of Civ.R. 24(C) called for the intervention motion to be
accompanied by a pleading as well but did not cite to Civ.R. 7(A). The rule was
amended in 1999 in order to reinforce the definition of a pleading as one that falls
under Civ.R. 7(A). See Staff Note to Civ.R. 24(C) (1999) (“The 1999 amendment
was intended to clarify that the ‘pleading’ to be filed with a motion to intervene
requires more than just a memorandum in support of the motion to intervene.”).
{¶46} Motions to intervene are regularly denied (and/or the denial upheld) due
to the failure to attach a pleading as required by Civ.R. 24(C). See, e.g., State ex rel.
Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-
1523, 905 N.E.2d 1192, ¶ 21-22; State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106,
2003-Ohio-2506, 789 N.E.2d 203, fn. 1; State ex rel. Polo v. Cuyahoga Cty. Bd. of
Elections, 74 Ohio St.3d 143, 144, 656 N.E.2d 1277 (1995).
{¶47} The Treasurer raised this failure below when responding to Appellant’s
motion to intervene. However, Appellant did not seek to correct the failure prior to
the scheduled hearing on the motion or prior to the subsequent ruling on the motion;
nor does Appellant address the omission on appeal. In accordance, the trial court’s
decision denying Appellant’s motion to intervene is upheld on this ground as well.
See id.{¶48} As the Treasurer points out, if Appellant is not permitted to intervene,
then his motion for relief from judgment under Civ.R. 60(B) need not be addressed.
We uphold the trial court’s judgment denying intervention. Therefore, the Civ.R.
60(B) motion is moot as it was filed in case the court granted intervention. See
Motion for Relief (“Now comes intervenor * * *”). Only a party or his legal
representative can file a Civ.R. 60(B) motion. The plain language of the rule
provides, “On motion and upon such terms as are just, the court may relieve a party
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or his legal representative from a final judgment, order or proceeding * * *”. Civ.R.
60(B).
{¶49} Due to this language, “a person or entity who is neither a party nor a
legal representative of a party may not properly obtain relief from a judgment by way
of Civ.R. 60(B), unless that person or entity first becomes a party through intervention
under Civ.R. 24.” Nicholas v. State Farm Ins., 11th Dist. No. 99-T-0030 (June 9,
2000). Where intervention is not granted to a movant, the movant’s motion for relief
from judgment must be denied as well.
{¶50} For all of these reasons, the trial court’s judgment is affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.