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Talarek v. Weaver

Court of Appeals of Ohio, Ninth District, Lorain

July 23, 2018

DANIEL J. TALAREK, LORAIN COUNTY TREASURER, et al. Appellees
v.
KENNETH A. WEAVER, et al. Appellants

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 16TX006716

          ROBERT J. GARGASZ, Attorney at Law, for Appellants.

          DENNIS P. WILL, Prosecuting Attorney, and CHRIS A. PYANOWSKI, Assistant Prosecuting Attorney, for Appellees.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, JUDGE.

         {¶1} Appellants, Kenneth and Kellie Weaver, appeal from the judgment of the Lorain County Common Pleas Court in favor of Appellees, the Lorain County Treasurer ("the Treasurer") and the Lorain County Land Reutilization Corporation ("the Land Reutilization Corp."). For the reasons set forth below, this Court affirms.

         I.

         {¶2} The Weavers were the titled owners of the real property located at 1133 West 17th Street, in Lorain, Ohio (Permanent Parcel Number 02-01-006-133-013) ("the Property"). In August 2007, the Weavers were certified as being delinquent for the real estate taxes on the Property. The structure on the Property was later condemned by the City of Lorain. Pursuant to an agency agreement between the City of Lorain and the Land Reutilization Corp., the Property was demolished on April 3, 2013. Demolition costs in the amount of $36, 547.07 were certified to the Lorain County Auditor on May 6, 2013. As of 2016, the Weavers owed $60, 008.83 in taxes, assessments (including the demolition cost), penalties, and interest.

         {¶3} The Treasurer sought to foreclose on the delinquent real estate taxes, assessments, penalties, and interest and to transfer the Property to the Land Reutilization Corp. without sale and free and clear of all liens, while the Land Reutilization Corp. sought a personal judgment against the Weavers for the demolition costs. The Weavers filed their answer. In accordance with the briefing schedule, the Treasurer and the Land Reutilization Corp. filed a summary judgment motion and two affidavits. The Weavers filed a brief in opposition and one affidavit, which was not executed. The Treasurer and the Land Reutilization Corp. filed a reply brief.

         {¶4} The trial court granted summary judgment on both claims in favor of the Treasurer and the Land Reutilization Corp. and against the Weavers. The trial court awarded the Treasurer an in rem judgment in foreclosure based upon the delinquent real estate taxes and ordered the Property foreclosed. The trial court found the Property was abandoned, the Land Reutilization Corp. wished to acquire the Property, and the Treasurer had invoked the statutory alternative redemption period. The Weavers had twenty-eight days after the judgment to redeem the Property. Upon the Weavers' failure to redeem, the Property was ordered to be directly transferred to the Land Reutilization Corp. and all liens on the Property were discharged. Additionally, the trial court ordered a personal judgment in favor of the Land Reutilization Corp. and against the Weavers for the demolition costs.

         {¶5} It is from this judgment that the Weavers appeal, raising four assignments of error. The Weavers do not challenge the foreclosure of the Property and only seek to reverse the personal judgment awarded against them. To facilitate the analysis, this Court will consolidate some of the assignments of error.

         II.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT APPLIED R.C. []323.78 [AND] R.C. []5722.03 AND ORDERED DIRECT TRANSFER AND A SIMULTANEOUS MONETARY JUDGMENT IN AN UNCONSTITUTIONAL MANNER AND PERMITTED THE MACHINERY OF THE TAX COLLECTION SYSTEM TO VITIATE THE PROTECTIONS AFFORDED [THE WEAVERS] BY OHIO CONST[ITUTION, ] ART[ICLE] I[, SECTIONS] 1, 19, EQUAL PROTECTION, AND DUE PROCESS PROTECTIONS AS PROVIDED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION[.] THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING SUMMARY JUDGMENT TO [THE TREASURER AND THE LAND REUTILIZATION CORP.] AND IN SIMULTANEOUSLY ORDERING THE DIRECT TRANSFER OF THE SUBJECT REAL PROPERTY TO THE [LAND REUTILIZATION CORP.], A STATE AGENCY, UNDER R.C. []323.78 [AND] R.C. []5722.03 AND A $36, 547.07 PERSONAL JUDGMENT AGAINST [THE WEAVERS].

         ASSIGNMENT OF ERROR NO. 2

         AN "UNCONSTITUTIONAL TAKING" OF THE [WEAVERS'] PROPERTY, EVEN IF SEEMINGLY AUTHORIZED BY STATUTE, IS CONSTITUTIONALLY PROHIBITED AS A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW, UNLESS THE "JUDICIALLY ORDERED" TAKING COMPORTS WITH THE CONSTITUTIONAL REQUIREMENTS OF THE OHIO CONST[ITUTION, ] ART[ICLE] I[, SECTION] 1, 19 AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION[.] THE TRIAL COURT'S ORDERED DIRECT TRANSFER AND MONETARY JUDGMENT IN THE INSTANT ...


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