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Rice v. Islamic Center of Peace, Inc.

Court of Appeals of Ohio, Second District, Montgomery

August 23, 2019

CAROLYN RICE, as Treasurer of Montgomery County, Ohio Plaintiff-Appellee
v.
ISLAMIC CENTER OF PEACE, INC., et al. Defendant-Appellant

          Civil Appeal from Common Pleas Court Trial Court Case No. 2017-CV-3927

          MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          WORRELL A. REID, Atty. Reg. No. 0059620, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, the Islamic Center of Peace (the "Center"), appeals from the trial court's final order of January 14, 2019, in which the court entered summary judgment in favor of Plaintiff-appellee, the Treasurer of Montgomery County (the "Treasurer"), and issued a decree of foreclosure against parcels of real property owned by the Center. Raising three assignments of error, the Center argues that the trial court's judgment should be reversed because the foreclosure proceedings violated its right to due process; because its real property was not encumbered by a valid tax debt; and because the court, in effect, resolved genuinely disputed questions of material fact, contrary to the mandate of Civ.R. 56. For the following reasons, we find that the Center's arguments lack merit, and therefore, the trial court's judgment of January 14, 2019, is affirmed.

         I. Facts and Procedural History

         {¶ 2} This case apparently began with the submission of an application pursuant to the Treasurer's "Depositor Foreclosure Program." See Appellant's Brief iv-vii; Appellee's Brief 4-5. As the Center describes the program, "a private [person] pays a deposit to the [Montgomery] [C]ounty [T]reasurer to cover the filing fees, attorney fees, court costs, and other expenses" associated with foreclosure proceedings to "induce the [T]reasurer to [commence] a tax foreclosure action" against one or more parcels of real property, designated by the depositor, for which property taxes are delinquent. See Appellant's Brief iv. The Treasurer only indirectly acknowledges the existence of the program and declines to offer any insight into its functioning or to cite the authority under which it has been established[1] Appellee's Brief 1-13.

         {¶ 3} On August 22, 2017, the Treasurer filed a complaint for foreclosure alleging that the Center had defaulted on its obligation to pay property taxes assessed against its real property located near the intersection of North Keowee Street and East Helena Street in Dayton-specifically, Parcel Nos. R72 05706 0023, R72 05706 0024, R72 05706 0033, R72 05706 0034 and R72 05706 0044.[2] See Complaint ¶ 1-2, Aug. 22, 2017. The complaint made no reference to the Depositor Foreclosure Program.

         {¶ 4} Along with its answer to the complaint, the Center asserted counterclaims for violation of the uniformity clause in "Article I[I], § 26 of [t]he Ohio Constitution"; for violation of its right to due process; and for retroactive abatement of its property taxes. Answer of Islamic Center of Peace 3-4, Oct. 30, 2017.[3] The trial court dismissed the counterclaims, on the Treasurer's motion, in a decision entered on January 18, 2018.[4]

         {¶ 5} On February 12, 2018, the Treasurer moved for summary judgment on the complaint. The trial court sustained the motion in its decision of March 14, 2018, and on May 4, 2018, the court filed an entry of final judgment.

         {¶ 6} Within hours of the filing of the judgment entry, the Center filed a notice of appeal to this court. In Rice v. Islamic Ctr. Of Peace, Inc., 2d Dist. Montgomery No. 27986, 2018-Ohio-5162, we found that the trial court's judgment entry had not resolved the amounts and priority of all liens against the Center's property, so we dismissed the appeal on December 21, 2018, for want of a final, appealable order. The trial court then filed an amended entry of final judgment on January 14, 2019, in which it accounted for the previously unresolved issues. On January 22, 2019, the Center timely filed its notice of appeal in the instant case.

         II. Analysis

         {¶ 7} For its first assignment of error, the Center contends that:

THE AMENDED FINAL JUDGMENT ENTRY, GRANTING SUMMARY JUDGMENT, AND FORECLOSING ON APPELLANT'S PROPERTY, VIOLATED APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS BECAUSE THE APPELLEE INSTITUTED THE FORECLOSURE PROCEEDING AFTER BEING PAID TO DO SO BY A PRIVATE INDIVIDUAL.

         {¶ 8} The Center argues that because "the decision to initiate [foreclosure] proceedings was made by, or on the behalf of, a private citizen, it can only be classified as illicit, arbitrary state action" in violation of the Center's right to due process. See Appellant's Brief 1. As well, the Center argues that by "giving a private party the power to induce [the Treasurer] to file a tax foreclosure action," the Depositor Foreclosure Program itself is a violation of Article II, Section 26, Ohio Constitution, ...


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