GARY H. FORTNEY v. ANGIE MCQUILLEN, TREASURER, ET AL
Case No. 19-COA-025
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 2, 2019
2019-Ohio-4941
Hon. W. Scott Gwin, P.J.; Hon. Craig R. Baldwin, J.; Hon. Earle E. Wise, J.
CHARACTER OF PROCEEDING: Civil appeal from the Ashland County Court of Common Pleas, Case No. 18-CIV-112; JUDGMENT: Affirmed in part, Reversed and Remanded in part
For Plaintiff-Appellant JOSHUA COHEN 3208 Clinton Avenue Cleveland, OH 44113
For Defendants-Appellees CHRISTOPHER TUNNELL Ashland County Prosecutor 110 Cottage Street Ashland, OH 44805
Gwin, P.J.
{¶1} Appellant appeals the June 3, 2019 judgment entry of the Ashland County Court of Common Pleas granting appellees’ motion for summary judgment and denying appellant’s motion for class certification.
Facts & Procedural History
{¶2} On June 12, 2018 appellant Gary Fortney filed a class action complaint against appellees Ashland County Treasurer and Ashland County Board of County Commissioners. Appellant alleges that, pursuant to Ohio statute, the price paid at judicial sales should include taxes on the purchased property for the current year, pro-rated through the date of the sale; however, as a matter of policy, Ashland County did not pro-rate the taxes and instead required the buyer of the property to pay real estate taxes for the full year of the purchase, making buyers twice pay taxes for the period before the purchase in the year of the transaction – once as a part of the purchase price, and a second time when Ashland County assessed them for taxes for the full year. Appellant further avers when he bought property at judicial sales in Ashland County and the county subsequently charged him real estate taxes for the full year of the transaction, he paid taxes twice and “only by adhering to its unlawful policy did Ashland County fail to deduct the tax from the sales proceeds.”
{¶3} Appellant states that his counsel wrote the common pleas court judge seeking guidance on the failure to comply with
{¶4} Appellees filed a motion to dismiss pursuant to Civil Rule 12(B)(6) on June 25, 2018. The trial court denied appellees’ motion to dismiss on October 29, 2018. On November 9, 2018, appellees filed an answer to appellant’s complaint. In both their answer to the complaint and in their answers to appellant’s interrogatories, appellees admitted that, prior to the effective date of Local Rule 19.06(B)(4), they did not deduct pro-rated real estate taxes for the current year from the sales proceeds of properties sold at sheriff’s sale.
{¶5} On April 12, 2019, appellant filed a motion for class certification and appointment of class counsel. Appellees filed a memorandum in opposition to appellant’s motion for class certification on April 22, 2019.
{¶6} Appellees filed a motion for summary judgment on April 15, 2019. Attached to the motion for summary judgment is the affidavit of Angela McQuillen (“McQuillen“), the Ashland County Treasurer. McQuillen avers she is responsible for collecting real estate taxes for all real estate in Ashland County and that, until the beginning of 2018, the Court of Common Pleas ordered that taxes due and payable be discharged out of the
{¶7} Appellant filed a memorandum in opposition to appellees’ motion for summary judgment on May 3, 2019. Attached to the memorandum in opposition is the affidavit of appellant. Appellant avers he purchased numerous properties listed through foreclosure in the Ashland County Court of Common Pleas between 2013 and the present. Further, that in April of 2014, he notified Ashland County the practice related to foreclosure sales and the pro-rating of unbilled and undue taxes did not comply with
{¶8} The trial court issued a judgment entry on June 3, 2019. The trial court found that appellant, as the successful bidder at the sheriff’s sale, was a party to the fourteen foreclosure cases at issue and therefore could have appealed any judgment entries confirming sale that erroneously calculated the taxes to be discharged. Additionally, the trial court found the unjust enrichment claim centers upon an issue appellant could have raised in a timely motion for relief from judgment, or an appeal, of whether the court correctly ordered the payment and discharge of taxes from the sale proceeds. The trial court concluded that because appellant was a party to the foreclosure cases and all of his claims could have been resolved, all of appellant’s claims are barred by res judicata.
{¶9} With regards to the statute of limitations in
{¶10} The trial court granted appellees’ motion for summary judgment and dismissed the case in its entirety on the basis of res judicata. Further, the trial court
{¶11} Appellant appeals the June 3, 2019 judgment entry of the Ashland County Court of Common Pleas and assigns the following as error:
{¶12} “I. THE TRIAL COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES JUDICATA ENTITLED THE DEFENDANTS TO SUMMARY JUDGMENT ON THE PLAINTIFF’S CLAIM FOR UNJUST ENRICHMENT.
{¶13} “II. THE TRIAL COURT ERRED IN HOLDING THAT THE ONE-YEAR STATUTE OF LIMITATIONS UNDER R.C. 2723.01 BARRED THE PLAINTIFF’S CLAIM FOR UNJUST ENRICHMENT.
{¶14} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE PLAINTIFF’S MOTION FOR CLASS CERTIFICATION.”
Summary Judgment Standard
{¶15} Civil Rule 56(C) provides, in pertinent 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 of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed mostly strongly in the party’s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
{¶16} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).
{¶17} When reviewing a trial court’s decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶18} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).
I.
{¶19} In his first assignment of error, appellant argues the trial court erred in holding the doctrine of res judicata entitled appellees to summary judgment on his claim for unjust enrichment.
{¶20} The doctrine of unjust enrichment “applies when a benefit is conferred and it would be inequitable to permit the benefitting party to retain the benefit without compensating the conferring party.” Garb-Ko, Inc. v. Benderson, 10th Dist. Franklin No. 12AP-430, 2013-Ohio-1249. The purpose of an unjust enrichment claim is not to compensate the plaintiff for loss or damage suffered by the plaintiff, but to enable the plaintiff to recover the benefit he conferred on the defendant when it would be unjust for the defendant to retain the benefit. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791. The elements of an unjust enrichment claim are: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant knew of the benefit; and (3) it would be unjust to allow the defendant to retain the benefit without payment to the plaintiff. Robinette v. PNC Bank, 5th Dist. Licking No. 15-CA-47, 2016-Ohio-767. The damages for unjust enrichment are “the amount the defendant benefited.” Bollman v. Lavery Automotive Sales & Serv., LLC, 5th Dist. Stark No. 2019CA00025, 2019-Ohio-3879. Unjust enrichment entitles a party only to restitution of the reasonable value of the
{¶21} In his affidavit, appellant avers he notified Ashland County that their practice did not comply with
{¶22} The doctrine of res judicata precludes “relitigation of a point of law or fact that was at issue in a former action between the same parties and was passed upon by a court of competent jurisdiction.” State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio St.3d 649, 687 N.E.2d 768 (1998). In order to apply the doctrine of res judicata, we must
{¶23} Appellees contend the confirmations of sale in each of the foreclosure cases bars appellant’s claims. We find the unjust enrichment claim was not and could not have been litigated in the prior action. The benefit appellant claims he conferred on the county and argues it would be unjust for the county to retain occurred after the confirmations of sale, when the county billed for and received taxes for the full year of the sale instead of deducting the pro-rated amount from the purchase price. Ashland County did not collect the taxes appellant is attempting to recoup until after the confirmation order was issued in each case. Accordingly, appellant’s first assignment of error is sustained, subject to the limitation as detailed in our disposition of appellant’s second assignment of error.
II.
{¶24} In his second assignment of error, appellant contends the trial court erred in holding the one-year statute of limitations under
{¶25} Pursuant to
{¶26} Absent ambiguity, the court must give effect to the plain meaning of a statute. Cablevision of the Midwest, Inc. v. Gross, 70 Ohio St.3d 541, 639 N.E.2d 1154 (1994). “Illegal” is generally defined as “forbidden by law; unlawful.” Black’s Law Dictionary (11th Ed. 2019); See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. Appellant’s claim for unjust enrichment in this case is that the county’s failure to pro-rate the taxes amounts to double taxation. Appellant is alleging appellees did not comply with
{¶27} Appellant cites LaBorde v. City of Gahanna, 10th Dist. Franklin Nos. 14AP-764, 14AP-806, 2015-Ohio-2047, in support of his argument. However, we find the
{¶28} While we agree with appellees that
III.
{¶29} In his third assignment of error, appellant argues the trial court erred in denying his motion for class certification. When the trial court granted appellees’ motion for summary judgment, the trial court also concluded appellant’s motion for class certification was moot.
{¶30} As detailed above in appellant’s second assignment of error, we find the trial court committed error when it granted summary judgment to appellees on appellant’s
{¶31} Based on the foregoing, we sustain appellant’s first and third assignments of error. We sustain appellant’s second assignment of error in part. The trial court did not commit error in granting summary judgment on appellant’s claims for taxes paid prior to June 12, 2017. We find the trial court committed error in granting appellees’ motion for summary judgment for taxes collected on or after June 12, 2017 and in finding the motion for class certification moot.
{¶32} The June 3, 2019 judgment entry of the Ashland County Court of Common Pleas is affirmed in part and reversed and remanded in part, for proceedings consistent with this opinion.
Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur