Court of Appeals of Ohio, Eighth District, Cuyahoga
BRANDON M. DEAN, Plaintiff-Appellant/ Cross-Appellee,
CUYAHOGA COUNTY FISCAL OFFICE, ET AL., Defendants-Appellee Cross-Appellant.
Appeal from the Cuyahoga County Court of Common Pleas Case
& Zurz, L.L.P., and Martin S. Delahunty, III, for
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Mark R. Greenfield, Assistant Prosecuting
Attorney, for appellees.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
1} This cause came to be heard upon the accelerated
calendar pursuant to App.R. 11.1 and Loc.R. 11.1.
Plaintiff-appellant, Brandon Dean ("appellant"),
brings the instant appeal challenging the trial court's
judgment granting defendants-appellees, Cuyahoga County
Fiscal Office and Cuyahoga County Treasurer's
(collectively "appellees") motion to dismiss.
Appellant argues that the trial court erred when it granted
appellees' motion to dismiss for failure to state a
claim. After a thorough review of the record and law, this
Factual and Procedural History
2} Appellant is the current owner of two residential
condominium units located within the Grande Arcade
Condominium complex located at 408 West Saint Clair Avenue in
downtown Cleveland. Appellant owns Unit 322 (assigned Parcel
ID 101-09-356) and Unit 323 (assigned Parcel ID 101-09-357).
Appellant purchased these units on November 27, 2017, from
Scott Dilyard and Susan Joy for a purchase price of $285, 000
per unit. Dilyard and Joy purchased these units on September
3, 2003, from West Sixth Associates Limited Partnership.
3} At the time of the purchase by Dilyard and Joy,
each unit consisted of one bedroom and one bathroom. Sometime
after the 2003 purchase, Dilyard and Joy combined the two
apartment units into a single unit consisting of two bedrooms
and two bathrooms. Dilyard and Joy had purchased the two
parcels for a total of $254, 900, and these units were sold
to Dilyard and Joy as part of a single transaction. The
purchase price of each individual unit was recorded in the
Cuyahoga County Recorder's Office as $254, 900.
4} In 2016, appellant attempted to purchase both
units but was unable to obtain the necessary financing for
the purchase. Appellant asserts that he was unable to obtain
financing because of a "property tax issue" that
was not resolved. Appellant attributed this "property
tax issue" to having two separate parcel numbers for a
single unit. Appellant argued that unless the parcels were
combined and a new parcel number was created, this
"property tax issue" would persist. Appellant
asserted that the total purchase price for both units was
erroneously associated with each individual unit.
Essentially, appellant asserted he was paying twice the price
for the purchase of a single unit.
5} Appellant attempted to remedy the error in order
to obtain financing for the purchase and apparently agreed to
handle the "property tax issue" with the Board of
Revision. Appellant had proposed to combine the parcels,
creating a single new parcel number. Further, appellant
sought to use the 2017 appraisal of $285, 000 as the new
property value for future taxation purposes for the proposed
new single parcel number.
6} A hearing was held on September 5, 2017, at the
Board of Revision. At that time, appellant presented his
arguments of what he characterized as the "property tax
issue" and incorrect property valuations to the Board of
Revision. On September 13, 2017, the Board of Revision issued
a decision and found Unit 322 to be valued at $228, 700, and
Unit 323 to be valued at $228, 100. Appellant did not file an
appeal of this decision either to the Board of Tax Appeals or
to the trial court. Appellant then on November 27, 2017,
purchased both units for $285, 000 each, for a total purchase
price of $570, 000 for both units.
7} On July 11, 2018, appellant filed a complaint in
the Cuyahoga County Court of Common Pleas asserting (1) a
claim against appellees of unjust enrichment, and (2) seeking
a declaratory judgment. Appellant also named four John Does
as defendants. The complaint alleged that appellees were
overpaid approximately $60, 000 in property taxes from
September 2003 through December 2017. Appellant sought
reimbursement of the overpayment in property taxes through
the unjust enrichment and declaratory judgment claims.
8} On September 9, 2018, appellees filed a joint
motion to dismiss for failure to state a claim pursuant to
Civ.R. 12(B)(6). Appellees argued that appellant did not have
standing to bring his action because appellant's
complaint failed to allege that he was responsible for and
paid property taxes from 2003 to 2017. Appellees also argued
that Ohio law does not recognize a claim against a political
subdivision for unjust enrichment. Appellees argued that
appellant's action was an attempt at a mandamus action,
and because his complaint did not allege that he paid
property taxes for the timeframe at issue, appellant's
action was barred by the express language of R.C. 2723.01.
R.C. 2723.01 confers jurisdiction to the common pleas court
over actions to recover overpayment of property taxes if
"the action is brought within one year after the taxes
or assessment are collected." Appellees further argued
that appellant's complaint was barred because he did not
allege that he filed a written protest and notice of
intention to sue when the property taxes were paid as
required by R.C. 2723.03.
9} On September 14, 2018, appellant filed a response
to appellees' motion to dismiss, a motion seeking to
amend the complaint in which appellant attached a proposed
amended complaint, and a motion for default
judgment In appellant's motion to amend the
complaint, appellant attempted to add a mandamus claim
pursuant to R.C. 2731.05. In his proposed mandamus action,
appellant argued that each unit's separately listed
purchase price of $254, 900 was a "clerical error."
Through this proposed mandamus action, appellant argued that
appellees were required to bring the "clerical
error" to the attention of the Board of Revision.
Appellant sought an action in mandamus in the trial court
seeking an order from the trial court directing the Board of
Revision to correct this asserted clerical error.
10} On September 26, 2018, the trial court issued a
journal entry granting appellees' joint motion to dismiss
and denying appellant's motion seeking to file an amended
complaint. In its journal entry, the trial court noted the
[Appellant's] motion to amend the complaint does not
address any of the jurisdictional deficiencies outlined in
[appellees'] motion to dismiss. Rather, it merely seeks
to add a mandamus action. But the essence of the
[appellant's] original complaint was a mandamus action to
obtain an order against [appellees] to adjust
[appellant's] property taxes in accordance with
[appellant's] claims. In substance there is no difference
between [appellant's] originally filed complaint and the
amended one he seeks to put before the court. This court does
not have jurisdiction to entertain the claims of
[appellant's] complaint or those in his proposed amended
complaint. As a result the motion to amend the complaint in
the precise ways he seeks to amend it is denied.
11} Appellant filed a notice of appeal on October
18, 2018. On October 25, 2018, this court, sua sponte,
dismissed appellant's appeal for lack of a final,
appealable order because the trial court failed to enter
judgment against the four John Doe defendants. Upon remand,
appellant filed a motion voluntarily dismissing the claims
against the four John Doe defendants without prejudice
pursuant to Civ.R. 41. On November 20, 2018, the trial court
entered a final judgment.
12} On November 20, 2018, appellant filed a motion
to reinstate his appeal, and on November 26, 2018, this court
granted appellant's motion.
13} Appellant assigns one ...