Tax Ease Ohio LLC v. Wells

2020 Ohio 306

TAX EASE OHIO LLC Plaintiff-Appellee v. RICK WELLS, et al. Defendants-Appellants

Appellate Case No. 28376

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

January 31, 2020

Trial Court Case No. 2016-CV-3207

(Civil Appeal from Common Pleas Court)

OPINION

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MELANIE CORNELIUS, Atty. Reg. No. 0029808 and JOSEPH McCLANDISH, Atty. Reg. No. 0073775, Ohio Attorney General's Office, Collections Enforcement Section, 150 East Gay Street, 21st Floor, Columbus, Ohio 43215 Attorneys for Intervenor-Appellee, Attorney General of Ohio

DAVID T. BRADY, Atty. Reg. No. 0073127, AUSTIN B. BARNES, III, Atty. Reg. No. 0052130, BRIAN S. GOZELANCZYK, Atty. Reg. No. 0090858, SUZANNE M. GODENSWAGER, Atty. Reg. No. 0086422 and MARK M. SCHONHUT, Atty. Reg. No. 0093698, 1213 Prospect Avenue, Suite 300, Cleveland, Ohio 44115 Attorneys for Plaintiff-Appellee

ANDREW M. ENGEL, Atty. Reg. No. 0047371, THOMAS W. KENDO, JR., Atty. Reg. No. 0058548 and GABRIELLE R. NEAL, Atty. Reg. No. 0092770, 7925 Paragon Road, Dayton, Ohio 45459 Attorneys for Defendants-Appellants

TUCKER, J.

{¶ 1} Defendants-appellants, Rick Wells and Joan Wells, appeal from the trial court's final judgment of April 8, 2019, an amended version of a judgment entered originally on January 31, 2018, in which the court sustained the motion of Plaintiff-appellee, Tax Ease Ohio, LLC ("Tax Ease"), for summary judgment on its complaint for foreclosure. Raising three assignments of error, Appellants argue that the trial court erred by overruling their motion to strike a portion of the affidavit offered by Tax Ease in support of its motion for summary judgment; by disregarding a genuine dispute of material fact with respect to the question of Tax Ease's standing; and by recognizing the validity of the State's liens against the real property identified in the complaint. For the following reasons, the trial court's judgment is affirmed.

I. Facts and Procedural History

{¶ 2} On June 24, 2016, Tax Ease filed a complaint pursuant to R.C. 5721.37, seeking to foreclose on Appellants' real property located at 10130 Union Road in Miamisburg. Tax Ease asserted that it had standing to bring the action as the holder of four tax certificates it purchased from the Montgomery County Treasurer under the provisions of R.C. 5721.33—specifically, Tax Certificate Nos. 2013-0000000044, 2013-0000000364, 2014-0000000349 and 2015-0000000300. See Complaint, Montgomery C.P. No. 2016 CV 03207 (June 24, 2016), ¶ 2-4, 11-12 and Ex. A. The certificates themselves indicate that they were purchased on behalf of Tax Ease by "US Bank as custodian for Tax Ease Ohio, LLC."¹ See id. at Ex. A.

{¶ 3} Appellants did not timely answer or otherwise respond to the complaint. Tax Ease filed a motion for default judgment on September 6, 2016, and on September 8, 2016, the trial court sustained the motion and entered a foreclosure decree. Appellants' real property was thereafter sold at a sheriff's auction on July 6, 2017.

{¶ 4} Eight days later, Joan Wells moved on her own behalf to quash service, to vacate the judgment entry of September 8, 2016, and to vacate the sale of the property, arguing pursuant to Civ.R. 4.6(C) that Tax Ease had improperly attempted to serve her by ordinary mail following an unsuccessful attempt to serve her by certified mail. The trial court entered a decision sustaining the motion on August 18, 2017, in which it found that Ms. Wells had not been properly served with process, but on August 22, 2017, Tax Ease filed its own motion to vacate judgment, requesting much the same relief as Ms. Wells had requested. In a decision entered on September 1, 2017, the court sustained Tax Ease's motion, again finding that Ms. Wells had not been properly served with process; consequently, the court ordered "that the [j]udgment rendered September 8, 2016, [be] vacated as to Defendant[,] Joan [Wells], ONLY," and that "the sale held on July 6, 2017[,] [be] vacated," as well.² (Emphasis sic.) Order Vacating Judgment 1-2, Sept.1, 2017. Rick Wells never filed an answer or other response to the complaint, nor did he move to vacate the default judgment against him.

{¶ 5} On October 4, 2017, Tax Ease filed a motion for summary judgment accompanied by an affidavit in support. The affiant, Sarah Timmons, averred among other things that Tax Ease was the "holder and owner" of the tax certificates "attached to the complaint." See Affidavit of Sarah Timmons ¶ 7, Sept 27, 2017. Appellants responded with a motion to strike the foregoing averment, as well as a cross-motion for summary judgment in which they argued that the complaint should have been dismissed because Tax Ease lacked standing.

{¶ 6} The trial court entered judgment in favor of Tax Ease on January 31, 2018. Appellants filed a notice of appeal on March 1, 2018, but this court dismissed the appeal on October 26, 2018, for want of a final, appealable order. Tax Ease Ohio, L.L.C. v. Wells, 2d Dist. Montgomery No. 27920, 2018-Ohio-4346, ¶ 19 and 27. On April 8, 2019, the trial court entered an amended judgment, and on May 1, 2019, Appellants timely commenced the instant appeal.

II. Analysis

{¶ 7} For their first assignment of error, Appellants contend that:

THE TRIAL COURT ERRED IN FAILING TO STRIKE A PORTION OF MS. TIMMONS'S AFFIDAVIT.

{¶ 8} Appellants moved the trial court to strike Paragraph 7 of the affidavit, in which Timmons averred that "Tax Ease Ohio, LLC is the holder and owner of the tax certificates attached to the complaint filed on June 24, 2016; these certificates are a [sic] true and accurate copy [sic] of the tax certificates sold to Tax Ease Ohio, LLC by the Montgomery County Treasurer."³ Defendants' Motion to Strike 1-2, Dec. 15, 2017; Timmons Aff. ¶ 7. The trial court overruled the motion in its judgment entry of January 31, 2018.

{¶ 9} On review of a trial court's ruling on a motion to strike, an appellate court determines whether the trial court abused its discretion. Bank of New York Mellon Trust Co., N.A. v. Herres, 2d Dist. Montgomery No. 25890, 2014-Ohio-1539, ¶ 35. An abuse of discretion is an "unreasonable, arbitrary or unconscionable" exercise of authority. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In the case at hand, the question is whether the trial court exercised its authority unreasonably, arbitrarily or unconscionably by finding that Timmons's affidavit fulfilled the requirements of Civ.R. 56(E), under which an affidavit submitted in support of, or in opposition to, a motion for summary judgment "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."

{¶ 10} Appellants posit that an affiant must qualify as an expert to be deemedcompetent to offer affidavit testimony regarding the ownership of property, inasmuch as the "[o]wnership of something, especially statutorily created assets such as * * * tax certificates, * * *, is a legal issue." Appellants' Brief 12. In reliance on this proposition, Appellants argue that the trial court abused its discretion by overruling their motion to strike because Timmons did not provide the court "with any foundational evidence that would [have] permit[ted] her to be qualified as an expert or [to] testify" that Tax Ease is the holder of the certificates. Id.

{¶ 11} Timmons's affidavit itself is poorly written, has apparently not benefitted from proofreading, and is obviously the result of the haphazard use of a template. For instance, Timmons twice referred to an "attached statement," though no "statement" was attached, and she tautologically indicated that she was "the Asset Manager as Authorized Agent of Tax Ease Ohio, LLC, and thus a duly authorized agent of Tax Ease Ohio, LLC." Timmons Aff. ¶ 4, 6, 8 and Exs. A-B.⁴ In addition, Timmons did not indicate when her employment with Tax Ease began, yet her employment as "Asset Manager" was the only discernible basis for her claim to have "personal knowledge of all the information set for [sic] in [the] affidavit."⁵ See Timmons Aff. ¶ 3-10. Tax Ease purchased the tax certificates between June 12, 2013, and October 2, 2015, whereas Timmons's affidavitwas notarized on September 27, 2017.

{¶ 12} Appellants' argument nevertheless lacks merit. Although words such as "holder" and "ownership" represent legal concepts, they also represent factual concepts that are well "within the ordinary, common and general knowledge and experience of [hu]mankind." (Citation omitted.) See, e.g., Ramage v. Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 103, 592 N.E.2d 828 (1992) (discussing the " 'common knowledge exception' " to the general requirement that expert testimony is necessary to establish proximate cause in actions for medical malpractice). For example, a representative definition of the word "holder," in ordinary usage, is "a person [who] holds" something as an "owner [or a] tenant," and a likewise representative definition of the word "ownership" is "the state, relation, or fact of being an owner."⁶ Merriam-Webster's Collegiate Dictionary 552 and 831 (10th Ed.1993). The average apartment tenant would, accordingly, be competent to testify that she is the "holder" of the premises described in her lease, and similarly, the average retail consumer would be competent to testify that she had "ownership" of an item she purchased.

{¶ 13} R.C. 5721.30(C) defines the term "[c]ertificate holder" as "a person, including a county land reutilization corporation, [who] purchases or otherwise acquires a tax certificate under [R.C.] 5721.32, 5721.33, or 5721.42 * * *, or a person to whom a tax certificate has been transferred pursuant to [R.C.] 5721.36." Tax Ease purchased TaxCertificate Nos. 2013-0000000044, 2013-0000000364, 2014-0000000349 and 2015-0000000300 pursuant to R.C. 5721.33. See Complaint, Montgomery C.P. No. 2016 CV 03207 (June 24, 2016), ¶ 2-4, 11-12 and Ex. A....