Court of Appeals of Ohio, Second District, Montgomery
CAROLYN RICE, as Treasurer of Montgomery County, Ohio Plaintiff-Appellee
ISLAMIC CENTER OF PEACE, INC., et al. Defendant-Appellant
Appeal from Common Pleas Court Trial Court Case No.
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
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.
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 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. See Complaint ¶ 1-2, Aug.
22, 2017. The complaint made no reference to the Depositor
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. The trial court dismissed the
counterclaims, on the Treasurer's motion, in a decision
entered on January 18, 2018.
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
7} For its first assignment of error, the Center
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, ...