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Dean v. Cuyahoga County Fiscal Office

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

BRANDON M. DEAN, Plaintiff-Appellant/ Cross-Appellee,
v.
CUYAHOGA COUNTY FISCAL OFFICE, ET AL., Defendants-Appellee Cross-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-900581

          Slater & Zurz, L.L.P., and Martin S. Delahunty, III, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mark R. Greenfield, Assistant Prosecuting Attorney, for appellees.

          JOURNAL ENTRY AND OPINION

          FRANK 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[1] ("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 court affirms.

         I. 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[2] 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 following:

[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 ...


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