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Fortney v. McQuillen

Court of Appeals of Ohio, Fifth District, Ashland

December 2, 2019

GARY H. FORTNEY Plaintiff-Appellant
v.
ANGIE MCQUILLEN, TREASURER, ET AL Defendants-Appellees

          Civil appeal from the Ashland County Court of Common Pleas, Case No. 18-CIV-112

         JUDGMENT: Affirmed in part, Reversed and Remanded in part

          For Plaintiff-Appellant JOSHUA COHEN

          For Defendants-Appellees CHRISTOPHER TUNNELL Ashland County Prosecutor

          JUDGES: Hon. W. Scott Gwin, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant appeals the June 3, 2019 judgment entry of the Ashland County Court of Common Pleas granting appellees' motion for summary judgment and denying appellant's motion for class certification.

         Facts & Procedural History

         {¶2} On June 12, 2018 appellant Gary Fortney filed a class action complaint against appellees Ashland County Treasurer and Ashland County Board of County Commissioners. Appellant alleges that, pursuant to Ohio statute, the price paid at judicial sales should include taxes on the purchased property for the current year, pro-rated through the date of the sale; however, as a matter of policy, Ashland County did not prorate the taxes and instead required the buyer of the property to pay real estate taxes for the full year of the purchase, making buyers twice pay taxes for the period before the purchase in the year of the transaction - once as a part of the purchase price, and a second time when Ashland County assessed them for taxes for the full year. Appellant further avers when he bought property at judicial sales in Ashland County and the county subsequently charged him real estate taxes for the full year of the transaction, he paid taxes twice and "only by adhering to its unlawful policy did Ashland County fail to deduct the tax from the sales proceeds."

         {¶3} Appellant states that his counsel wrote the common pleas court judge seeking guidance on the failure to comply with R.C. 323.47 and the judge responded that the county did not pro-rate property taxes for the year during which judicial sales take place because it would be administratively burdensome, the county had a long-standing policy not to pro-rate taxes, and R.C. 323.47 might be unconstitutional. Appellant alleges that, as a result of this policy, the county has received double payment from appellant and all other purchasers at judicial sales of property taxes owed for the year in which the transaction took place. In Count One of his complaint, appellant argues the doctrine of unjust enrichment entitles him and the class to recoup sums from appellees. In Count Two of his complaint, appellant seeks a declaratory judgment that appellees violated R.C. 323.47 by failing to pro-rate and deduct real estate taxes for the current year through the date of sale or confirmation, depending upon the version of the statute that was in force at the time of the transaction.

         {¶4} Appellees filed a motion to dismiss pursuant to Civil Rule 12(B)(6) on June 25, 2018. The trial court denied appellees' motion to dismiss on October 29, 2018. On November 9, 2018, appellees filed an answer to appellant's complaint. In both their answer to the complaint and in their answers to appellant's interrogatories, appellees admitted that, prior to the effective date of Local Rule 19.06(B)(4), they did not deduct pro-rated real estate taxes for the current year from the sales proceeds of properties sold at sheriff's sale.

         {¶5} On April 12, 2019, appellant filed a motion for class certification and appointment of class counsel. Appellees filed a memorandum in opposition to appellant's motion for class certification on April 22, 2019.

         {¶6} Appellees filed a motion for summary judgment on April 15, 2019. Attached to the motion for summary judgment is the affidavit of Angela McQuillen ("McQuillen"), the Ashland County Treasurer. McQuillen avers she is responsible for collecting real estate taxes for all real estate in Ashland County and that, until the beginning of 2018, the Court of Common Pleas ordered that taxes due and payable be discharged out of the proceeds of foreclosure sales, instead of pro-rating taxes and that after the common pleas court issues an order confirming sale and distributing the proceeds, the sheriff forwards her the amount of money ordered by the court to discharge the taxes. When McQuillen has not received enough money from the sheriffs office to discharge pro-rated taxes in a foreclosure sale, she has no choice but to include those amounts on the first tax bill to the new owner of the property. Also attached to the motion for summary judgment is the affidavit of Christopher Tunnell ("Tunnell"), the Ashland County Prosecuting Attorney.

         {¶7} Appellant filed a memorandum in opposition to appellees' motion for summary judgment on May 3, 2019. Attached to the memorandum in opposition is the affidavit of appellant. Appellant avers he purchased numerous properties listed through foreclosure in the Ashland County Court of Common Pleas between 2013 and the present. Further, that in April of 2014, he notified Ashland County the practice related to foreclosure sales and the pro-rating of unbilled and undue taxes did not comply with R.C. 323.47 and the County informed him they would not change their practice in this regard. Appellant stated effective January 1, 2018, Local Rule 19.06 was amended to provide that real estate taxes in foreclosure proceedings would be estimated and pro-rated as of the date of the sale of the property, thus curing the concerns appellant had about noncompliance with R.C. 323.47. Appellant then detailed each property he purchased at judicial sale from December 5, 2013 to 2018 and stated that, in each instance, the purchase price he paid for the property included half years of taxes; further, that after he paid for each property, Ashland County reassessed the ...


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