2019 Ohio 535
Ohio Ct. App.2019Background
- Cuyahoga County Treasurer filed a tax foreclosure under R.C. 5721.18 against 1544 Coventry Road for unpaid real estate taxes; preliminary report identified a tax lien certificate held by Lakeview Holding (predecessor to Faraday/ appellant).
- Lakeview answered but did not properly initiate foreclosure or certify a notice of intent to foreclose under R.C. 5721.37; it later moved for and obtained a court finding that its tax-certificate interest had priority for distribution of sale proceeds.
- Magistrate awarded the treasurer a foreclosure decree (June 9, 2017); trial court adopted it (July 6, 2017). No timely appeal by Lakeview/appellant.
- The sheriff’s sale was held twice (Oct. 2 and Oct. 16, 2017) with no bidders; no sale proceeds resulted. Trial court issued an order of forfeiture to the treasurer (Dec. 15, 2017). Appellant did not timely appeal or move to stay.
- Appellant (Faraday) filed a Civ.R. 60(B) motion to vacate the forfeiture (filed Apr. 12, 2018); the trial court denied the motion (May 23, 2018). Appellant appealed; the Eighth District consolidated appeals and reviewed only the denial of the Civ.R. 60(B) motion.
Issues
| Issue | Plaintiff's Argument (Treasurer) | Defendant's Argument (Faraday) | Held |
|---|---|---|---|
| Whether trial court abused discretion in denying Civ.R. 60(B) motion to vacate forfeiture | Denial proper because appellant failed to meet GTE factors; no meritorious defense; appellant and predecessor failed to follow statutory foreclosure procedures and did not timely appeal | Foreclosure and forfeiture violated R.C. 5721.40 / R.C. 5723.01 and court inexplicably changed position after recognizing appellant’s prioritized interest; thus relief warranted | Affirmed: no abuse of discretion; appellant failed to show meritorious defense or proper grounds under Civ.R. 60(B) |
| Whether appellant could rely on trial court’s prior recognition of priority interest to avoid forfeiture | Priority concern applies only to distribution of proceeds if property sold; here there were no sale proceeds because property remained unsold | Priority entitles certificate holder to forfeiture under R.C. 5721.40 (argued by appellant) | Court: priority for proceeds ≠ entitlement to forfeiture absent statutory prerequisites; appellant did not comply with R.C. 5721.37 so not entitled to forfeiture |
| Whether Civ.R. 60(B) may substitute for a timely direct appeal of the forfeiture/order | Civ.R. 60(B) cannot substitute for an untimely appeal; appellant’s claims should have been raised on direct appeal | Sought relief via Civ.R. 60(B) because direct appeal was missed | Court: civ. rule cannot be used to bootstrap time-barred challenges; dismissal affirmed |
| Whether appeal is moot because title has transferred to third party | N/A (Treasurer notes transfer) | Appellant seeks relief despite property having been conveyed to CCLRC and then to a private third party | Court: moot — deed conveyed to CCLRC and then quitclaimed to third party; even if reversal granted, no effective relief possible |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (1976) (sets three-part test for Civ.R. 60(B): meritorious defense, entitlement under Civ.R. 60(B)(1)-(5), and timely motion)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (1988) (standard of abuse of discretion on Civ.R. 60(B) review)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (defines abuse of discretion as unreasonable, arbitrary, or unconscionable)
- Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128 (1986) (Civ.R. 60(B) cannot be used as substitute for timely appeal)
- Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86 (1989) (requirements for final appealable order under Civ.R. 54(B) and R.C. 2505.02)
- Blodgett v. Blodgett, 49 Ohio St.3d 243 (1990) (satisfaction of judgment renders appeal moot)