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Oliver v. City of Marysville

Court of Appeals of Ohio, Third District, Union

May 21, 2018

BETTY OLIVER, PLAINTIFF-APPELLANT,
v.
CITY OF MARYSVILLE, ET AL., DEFENDANTS-APPELLEES.

          Appeal from Union County Common Pleas Court Trial Court No. 2016-CV-0003

          Aaron E. Michel for Appellant

          Patrick Kasson and Kari D. Hehmeyer for Appellee, City of Marysville

          OPINION

          ZIMMERMAN, J.

         {¶1} This appeal is brought by Betty Oliver, the Plaintiff-Appellant ("Appellant") herein, from the judgment of the Union County Court of Common Pleas, granting summary judgment in favor of Defendant-Appellees, the City of Marysville, the Union County Auditor, and the Union County Treasurer, in a declaratory judgment and injunctive relief action. On appeal, Appellant asserts that the trial court erred: 1) by finding that the nuisance abatement (relative to her property) was performed in accordance with the prior order of the court; 2) by finding that the City of Marysville was immune from tort damages; 3) by finding that there were no genuine issues of material fact regarding the trial court's prior order and the validity of a tax lien on Appellant's property; 4) by concluding that R.C. §715.261 does not establish a deadline for the certification of abatement costs; and 5) by concluding that the certification of abatement costs was proper. For the reasons that follow, we affirm the decision of the trial court.

         Factual Background

         {¶2} In 2006 Betty Oliver and her husband, Charles Oliver, purchased real estate in Marysville, Ohio. (Doc. No. 1). Appellant reportedly suffered from a hoarding disorder, which resulted in the accumulation of possessions and debris on the property. (Id.). Attempts to have Appellant and her husband remove the debris from the property were unsuccessful, resulting in the Union County Board of Health (the "Board") and the City of Marysville (the "City") filing a complaint against Appellant and her husband in 2011 in the Union County Common Pleas Court.[1](Id.). The Board and the City alleged in the complaint that because Appellant and her husband had failed to clean up the trash and debris on the real estate, a nuisance existed thereupon. (Id., Ex. A). The complaint further alleged that Appellant (and her husband) were not permitted to reside in the home because of their failure to obtain an occupancy permit after the home was renovated after a fire.

         {¶3} On May 23, 2012, the trial court issued its judgment entry in case 2011-CV-0278, finding that the defendants were in default for failing to file an answer to the nuisance complaint. (Id.). Thus, based upon the information contained in the complaint, the trial court ordered that because a "no occupancy" permit had been issued by the Health Department, no one was permitted to reside in the home on the property. (Id.). Further, in granting a default judgment against Appellant, the trial court declared that a nuisance existed upon the property, and ordered Appellant to "clean up both [the] inside and outside of the home and that all trash, debris, excess material and/or junk be removed from the premises within the next thirty (30) days." (Id.). The trial court's order also provided notice that the failure to clean up the property would result in the Board and City "take all necessary steps and/or actions to abate the nuisance located at 325 South Plum Street" and that the Appellant would be fully liable to the Board and the City for the total costs incurred in abating the nuisance located upon the real property. (Id.). Finally, the trial court ordered that all costs incurred by the Board and the City in abating the nuisance be certified to the Union County Auditor for inclusion in the real estate taxes due upon the real estate.[2] (Id.).

         {¶4} The Appellant failed to abate the nuisance on her property within the thirty-day (30) period ordered by the trial court, and resulted in the City hiring SERVPRO ("SERVPRO") to clean up the property. (Doc. No. 1; Ex. E). SERVPRO cleaned the property on September 14, 2012, at a cost of $12, 381.75, which the City paid. (Id.).

         {¶5} Nearly two (2) years later, on June 14, 2014, Appellant's property was sold for $27, 000. (Doc. No. 1, Ex. H). Prior to closing on the property, the City presented Appellant with SERVPRO's bill. (Id.). So, to complete the closing, Appellant and the buyer executed a "hold back and escrow agreement" with the title company, which identified that there was an unresolved property bill (from SERVPRO), payment of which would be resolved after the real estate closing. (Doc. No. 13, Ex. A). Thus, the proceeds from the sale of Appellant's property were placed into an escrow account. (Id.).

         Procedural History

         {¶6} On January 5, 2016, Appellant filed a complaint in the trial court for a declaratory judgment and injunction (in Case Number 16-CV-0003). (Doc. No. 1). Appellant listed the Board of Health, the City of Marysville, the Union County Auditor, the Union County Treasurer, and Schultze, Howard, & Cox (as escrow agent) as defendants. (Id.). In her complaint, Appellant requested: that the trial court declare the tax lien invalid; order the Union County Auditor to strike the lien from the tax duplicate; enjoin the Union County Treasurer from collecting the lien; order the funds held in escrow be released to Appellant; and order the Board and the City to pay the costs of the action, including attorney fees. (Id.).

         {¶7} Thereafter, all named defendants filed answers to Appellant's complaint. (Doc. Nos. 13, 14, 15, and 16). On March 9, 2016, defendant Schulze, Howard, & Cox filed a motion to deposit the escrowed funds of the sale with the court and to release them from compliance with the trial court's scheduling order. (Doc. No. 21). Appellant did not object and the trial court granted the motion to interplead the funds. But, the trial court overruled defendant Schulze, Howard, & Cox's request to be released from the scheduling order. (Doc. No. 24). However, on April 19, 2016, Appellant dismissed her claims against defendant Schulze, Howard, & Cox, due to the interpleading of funds with the court. (Doc. No. 29).

         {¶8} On March 17, 2016, the Board filed a motion for judgment on the pleadings. (Doc. No. 23). The Board alleged that as a political subdivision it was immune from all tort claims. (Id.). The Board further claimed that the Appellant's "taking" claim was not ripe. (Id.). Lastly, the Board claimed that Appellant had not pled the necessary requirements for "selective prosecution, " nor had she complied with the statute of limitations for filing tort claims against a political subdivision. (Id.).

         {¶9} On April 27, 2016, the City filed its motion for judgment on the pleadings. (Doc. No. 31). The City alleged that Appellant set forth no cause of action against it, and further, as a political subdivision, it was entitled to a grant of immunity. (Id.). The City also alleged that Appellant's complaint was insufficient to maintain a selective prosecution claim, but even if it was sufficient, the selective prosecution claim was barred by res judicata (Id.). Lastly, the City alleged that the Appellant did not have a valid claim for a "taking" and Appellant's allegations in general were barred by the statute of limitations. (Id.). In response, Appellant filed a motion to amend her complaint on May 10, 2016 (Doc. No. 33), which was opposed to by the Board and the City. (Docs. 35 and 42).

         {¶10} On September 2, 2016, the Board filed a motion for summary judgment. (Doc. No. 46). Thereafter, the trial court issued its journal entry on September 8, 2016 ruling that the Board and the City were both political subdivisions and immune from tort damages. (Id.). The trial court also found that the Appellant presented no facts that would support her claim of selective prosecution. (Id.). In regards to the declaratory judgment regarding the tax lien, the trial court found that there may be a set of facts that could support Appellant's claim against the City. (Id.). However, with respect to the Board, the trial court sustained its motion for judgment on the pleadings, and dismissed the Board as a party to the litigation. (Id.). The trial court also granted the City's motion for judgment on the pleadings on all claims except for the declaratory judgment claim regarding the validity of the tax lien. (Id.). Finally, the trial court granted Appellant leave to amend her complaint as to the declaratory judgment claim only. (Id.).

         {¶11} On September 16, 2016, Appellant filed an amended complaint for declaratory relief in the trial court. (Doc. No. 50). To the amended complaint, the remaining defendants, the Union County Auditor, the Union County Treasurer, and the City, all filed timely answers. (Doc. Nos. 53, 54).

         {¶12} On September 29, 2016, the City filed its motion for summary judgment. (Doc. No. 55). Attached to the motion for summary judgment was a document signed by the Appellant, the City Law Director, and others that read: "agreement to allow entry onto the premises in order to remove personal property that does not present a public health risk (the "Agreement")." (Id., Ex. 1). Appellant filed her response to the City's motion for summary judgment on October 25, 2016. (Doc. No. 58).

         {¶13} Ultimately, on December 28, 2017, the trial court ruled on the summary judgment motions of the Appellant and the City. (Doc. No. 84). The trial court found that the Appellant had failed to properly authenticate her exhibits in her motion for summary judgment pursuant to Civ.R. 56(C). Thus, the trial court declined to consider such exhibits. (Id.). In regards to the City's motion for summary judgment, the trial court found that neither the original journal entry nor R.C. 715.261 established a deadline for the certification of costs of the abatement. (Id.). The trial court further found that the tax lien on Appellant's property was valid, pursuant to the judgment entry in case number 2011-CV-0278 and per R.C. 715.26 and R.C. 715.261. (Id.).

         {¶14} Accordingly, the trial court sustained the City's motion for summary judgment and dismissed Appellant's complaint in its entirety. (Id.).

         {¶15} From this final judgment entry Appellant appeals, and presents the following assignments of error for our review:

         ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PROPERTY OWNER BY FINDING FROM THE PLEADINGS THAT THE ABATEMENT WAS PROFESSIONAL AND IN ACCORDANCE WITH THE PRIOR ORDER OF THE COURT.

         ASSIGNMENT OF ERROR NO. II

         THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PROPERTY OWNER BY FINDING THAT THE CITY OF MARYSVILLE WAS A POLITICAL SUBDIVISION PERFORMING A GOVERNMENTAL FUNCTION AND THEREFORE IMMUNE FROM TORT DAMAGES AND BY DISMISSING THE CLAIM FOR DAMAGES.

         ASSIGNMENT OF ERROR NO. III

         THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PROPERTY OWNER BY FINDING THAT THERE ARE NO GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THE CITY COMPORTED WITH THE PRIOR COURT ORDER AUTHORIZING ABATEMENT AND

         CERTIFICATION OF COSTS AND WHETHER THE TAX LIEN IS VALID AND DISMISSING THE COMPLAINT WITH PREJUDICE.

         ASSIGNMENT OF ERROR NO. IV

         THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PROPERTY OWNER BY CONCLUDING THAT R.C. § 715.261 DOES NOT ESTABLISH A DEADLINE FOR CERTIFICATION AND THAT CERTIFICATION OF COSTS SUBMITTED BY THE CITY IN 2014 IS NOT TIME BARRED OR OTHERWISE SUBJECT TO ANY TIME LIMITATION.

         ASSIGNMENT OF ERROR NO. V

         THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PROPERTY OWNER BY CONCLUDING THAT THE CERTIFICATION IS VALID BECAUSE IT COMPORTS WITH R.C. ยง 715.261 AT THE TIME OF THE ...


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