[Cite as Hamilton v. Mansfield Motorsports Speedway, L.L.C., 2012-Ohio-2446.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BART W. HAMILTON, TREASURER JUDGES:
RICHLAND COUNTY, OHIO Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Plaintiff-Appellee Hon. Julie A. Edwards, J.
-vs- Case No. 11 CA 103
MANSFIELD MOTORSPORTS
SPEEDWAY, LLC, et al., OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 10 CV 1287D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 31, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. ROBERT A. FRANCO
PROSECUTING ATTORNEY 1007 Lexington Avenue
STEPHEN M. WILDERMUTH Mansfield, Ohio 44907
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 11 CA 103 2
Wise, J.
{¶1} Defendant-Appellant Mansfield Motorsports Speedway, LLC appeals the
October 5, 2011, decision of the Court of Common Pleas of Richland County, Ohio,
granting summary judgment in favor of Plaintiff-Appellee Bart W. Hamilton, Treasurer,
Richland County, Ohio, and denying Defendant-Appellant’s motion for default judgment
on its counterclaim.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} From 2001 through 2004, Appellant, Mansfield Motorsports Speedway,
LLC, made improvements to its real property, including installation and repair of a
grandstand with private viewing boxes, a ticket box office, concessions stand,
restrooms, a flag stand, specialty safety fencing, and repairs to the oval race track
surface.
{¶4} Upon completion of the project, the Richland County Auditor, Patrick
Dropsey, taxed the improvements as real property. In September of 2009, the Tax
Commissioner of Ohio, Joseph Testa, assessed use tax on these same improvements.
{¶5} It is conceded that Appellant did not challenge the 2004 determination of
the Auditor via R.C. §5715.19, nor did Appellant pursue or challenge the 2009
determination of the Tax Commissioner that the improvements constituted personal
property.
{¶6} In July of 2010, the Tax Commissioner filed a use tax lien against
Appellant in the amount of $676,674.31.
Richland County, Case No. 11 CA 103 3
{¶7} On September 28, 2010, Appellee Richland County Treasurer filed a
foreclosure complaint against Appellant (Case No. 10-CV-1287D) for non-payment of
real property taxes, which is the subject of this appeal.
{¶8} On November 30, 2010, Appellant Mansfield Motorsports Speedway filed
a motion for leave to file an amended answer and counter-claim
{¶9} By Entry filed December 6, 2010, the trial court granted leave to Appellant
to file an amended answer and counter-claim.
{¶10} On February 17, 2011, Appellant filed a complaint for declaratory
judgment and mandamus given the conflicting tax assessments. In that action,
Appellant sought a declaration that the improvements in question constituted personal
property subject to a use tax. In the alternative, Appellant sought a finding that the
improvements were real property not subject to a use tax. Appellant also requested a
writ of mandamus to order the Auditor to reclassify the improvements as personal
property and remove them from county real estate tax rolls or, in the alternative, order
the Auditor to determine if the improvements were real or personal property. See Stark
County Common Pleas Court Case No. 11CV230D.
{¶11} By Order filed May 2, 2011, upon motion filed by Appellant Mansfield
Motorsports Speedway, the trial court stayed the foreclosure proceedings in the instant
case pending final resolution of the declaratory judgment action.
{¶12} In the declaratory judgment action, the defendants therein filed motions to
dismiss, claiming the trial court lacked jurisdiction as the assessment of real property
taxes and use taxes should have been appealed to the Board of Revision and the Board
of Tax Appeals, respectively.
Richland County, Case No. 11 CA 103 4
{¶13} By judgment entry filed June 13, 2011, the trial court dismissed the
declaratory judgment action, finding it lacked jurisdiction to hear the case, Appellant
failed to state a claim upon which relief can be granted, Appellant had or has adequate
legal remedies, and laches barred Appellant's claims.
{¶14} On July 8, 2011, Appellee Treasurer filed a motion to lift the stay, which
was granted on August 4, 2011,
{¶15} On August 8, 2011, Appellee Treasurer filed a motion for summary
judgment.
{¶16} On August 16, 2011, Appellant filed its memorandum in opposition to
Appellee’s motion for summary judgment.
{¶17} On August 16, 2011, Appellant also filed its own motion for summary
judgment and motion for default judgment on its counterclaim.
{¶18} On September 19, 2011, the Richland County Auditor filed a motion to
intervene.
{¶19} On September 19, 2011, Appellee Treasurer filed its response in
opposition to Appellant’s motion for summary and default judgment.
{¶20} By Judgment Entry filed October 5, 2011, the trial court granted summary
judgment in favor of Plaintiff-Appellee Bart W. Hamilton, Treasurer, Richland County,
Ohio, and denied Defendant-Appellant’s motion for default and summary judgment on
its counterclaim. The trial court also denied the county auditor’s motion to intervene for
failure to comply with Loc.R. 1.04.
{¶21} This Court, by Opinion dated March 7, 2012, affirmed the trial court’s
dismissal of the declaratory judgment action, finding that not all of the statutory
Richland County, Case No. 11 CA 103 5
administrative procedures to challenge the tax assessments were exhausted and
therefore, a declaratory judgment action was not the appropriate vehicle to challenge
the determinations of the Auditor and the Tax Commissioner on the taxation of the
improvements. This Court did, however, find that there still remain remedies available
where laches may not lie. See State of Ohio, Ex Rel Mansfield Motorsports Speedway,
LLC, et al. v. Patrick W. Dropsey, Richland County Auditor, et al., Richland App. No.
2011 CA 0065, 2012-Ohio-968.
{¶22} Appellant now appeals the trial court’s October 5, 2011, decision in the
instant foreclosure case, assigning the following assignments of error.
ASSIGNMENTS OF ERROR
{¶23} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF PLAINTIFF-APPELLEE (AT THE VERY LEAST, A MATERIAL FACT
REMAINS TO BE LITIGATED).
{¶24} “II. THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS
NO CONSTITUTIONAL VIOLATION IN THIS CASE.
{¶25} “III. THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANT-
APPELLANT TO PRESENT A DEFENSE THAT THE TAX GIVING RISE TO
PLAINTIFF-APPELLEE'S FORECLOSURE ACTION WAS AN UNCONSTITUTIONAL
ASSESSMENT.
{¶26} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN
CONCLUDING THAT NO RESPONSIVE PLEADING WAS REQUIRED ON
DEFENDANT-APPELLANT'S COUNTERCLAIM, AND THAT DEFENDANT-
APPELLANT WAS NOT ENTITLED TO SUMMARY AND DEFAULT JUDGMENT.
Richland County, Case No. 11 CA 103 6
{¶27} “V. THE TRIAL COURT ERRED IN CONCLUDING THAT COLLATERAL
ESTOPPEL BARRED DEFENDANT-APPELLANT'S COUNTERCLAIM AND
DEFENSE.
{¶28} “VI. THE TRIAL COURT ERRED IN CONCLUDING THAT LACHES
BARRED DEFENDANT-APPELLANT'S COUNTERCLAIM AND DEFENSE.”
I., II., III.
{¶29} In its first three Assignments of Error, Appellant argues that the trial court
erred in granting summary judgment in favor of Appellee. We disagree.
“Summary Judgment Standard”
{¶30} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,
in pertinent part:
{¶31} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence in the pending case, and written stipulations of fact, if any, timely filed in the
action, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. * * * A summary judgment shall not be
rendered unless it appears from such evidence or stipulation and only therefrom, that
reasonable minds can come to but one conclusion and that conclusion is adverse to the
party against whom the motion for summary judgment is made, such party being
entitled to have the evidence or stipulation construed most strongly in his favor.”
Richland County, Case No. 11 CA 103 7
{¶32} Pursuant to the above rule, a trial court may not enter a summary
judgment if it appears a material fact is genuinely disputed. The party moving for
summary judgment bears the initial burden of informing the trial court of the basis for its
motion and identifying those portions of the record that demonstrate the absence of a
genuine issue of material fact. The moving party may not make a conclusory assertion
that the non-moving party has no evidence to prove its case. The moving party must
specifically point to some evidence which demonstrates the non-moving party cannot
support its claim. If the moving party satisfies this requirement, the burden shifts to the
non-moving party to set forth specific facts demonstrating there is a genuine issue of
material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing
Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶33} It is based upon this standard that we review Appellant’s assignments of
error.
{¶34} In the case sub judice, the county treasurer initiated the foreclosure action
against Appellant for unpaid real estate taxes.
{¶35} In its Amended Answer and Counterclaim, Appellant challenged the real
property tax assessment as unconstitutional. Appellant also filed the declaratory
judgment action described above to challenge the tax assessments, seeking a
declaration that the improvements at issue in this case were personal property and thus
subject to use tax, or in the alternative, were real estate improvements and thus not
subject to use tax.
Richland County, Case No. 11 CA 103 8
{¶36} As this Court stated in the Declaratory Judgment action, at no time prior to
the filing of the foreclosure action did Appellant avail himself of the statutory
administrative procedures to challenge the tax assessments.
{¶37} The exhaustion of administrative remedies doctrine requires that where an
administrative remedy is available, relief must be sought by exhausting the remedy
before a court will act. Nemazee v. Mt. Sinai Med. Ctr. (1990), Ohio St.3d 109, 56 Ohio
St.3d 109, 564 N.E.2d 477,syllabus.
{¶38} In the appeal of the declaratory judgment, this Court found that R.C.
§5717.02 governs complaints involving tax assessments by the tax commissioner and
states the following in pertinent part:
{¶39} "Except as otherwise provided by law, appeals from final determinations
by the tax commissioner of any preliminary, amended, or final tax assessments,
reassessments, valuations, determinations, findings, computations, or orders made by
the commissioner may be taken to the board of tax appeals by the taxpayer, by the
person to whom notice of the tax assessment, reassessment, valuation, determination,
finding, computation, or order by the commissioner is required by law to be given ***.
{¶40} "Such appeals shall be taken by the filing of a notice of appeal with the
board, and with the tax commissioner if the tax commissioner's action is the subject of
the appeal ***. The notice of appeal shall be filed within sixty days after service of the
notice of the tax assessment, reassessment, valuation, determination, finding,
computation, or order by the commissioner or redetermination by the director has been
given as provided in section 5703.37, 5709.64, 5709.66, or 5733.42 of the Revised
Code."
Richland County, Case No. 11 CA 103 9
{¶41} This Court went on to find that R.C. §5715.19 governs complaints
involving tax assessments by the county auditor. Subsection (A)(1) states the following
in pertinent part:
{¶42} "(1) Subject to division (A)(2) of this section, a complaint against any of the
following determinations for the current tax year shall be filed with the county auditor on
or before the thirty-first day of March of the ensuing tax year or the date of closing of the
collection for the first half of real and public utility property taxes for the current tax year,
whichever is later[.]***
{¶43} "***The county auditor shall present to the county board of revision all
complaints filed with the auditor."
{¶44} As in the previous appeal, we likewise find the tax foreclosure action is not
the appropriate vehicle to challenge the determinations of the Auditor and the Tax
Commissioner, neither of which are parties to this action, on the taxation of the
improvements.
{¶45} Appellant’s first three Assignments of Error are overruled.
IV., V., VI.
{¶46} In its remaining Assignments of Error, Appellant argues that the trial court
erred in determining that no responsive pleading was required on its counterclaim and
in not granting summary and default judgment on same. We disagree.
{¶47} The trial court, in its summary judgment ruling, found that Appellant was
not entitled to summary and default judgment on its counterclaim as such counterclaim
“simply denies that the tax was assessed against its real property.” As such, the trial
court found that such was “a defense which does not require an answer”.
Richland County, Case No. 11 CA 103 10
{¶48} Upon review, we find that Appellant, in its counterclaim, alleged that
Appellee Treasurer had been improperly including personal property in determining the
value of its real property for tax purposes and that as a result, it had been over-taxed.
{¶49} The problem with Appellant’s argument is that the Treasurer, the Appellee
and Plaintiff in this case, is only responsible for collection of taxes. It is the Auditor, not
the Treasurer, whose statutory obligation is to categorize property as real or personal
and to determine how much tax is owed.
{¶50} Further, as stated above, Appellant in this case failed to appeal his tax
assessment and request a hearing with Richland County Board of Revision, therein
failing to exhaust all of its administrative remedies.
{¶51} Based on the foregoing, we find that Appellant’s counterclaim failed to
state a claim upon which relief could be granted and that such did not require an
Answer.
{¶52} Based on the foregoing, we find the trial court did not err in denying
Appellant’s motion for summary and default judgment on its counterclaim.
{¶53} Appellant’s assignments of error are overruled.
{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., concurs.
Edwards, J., dissents.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0509
Richland County, Case No. 11 CA 103 11
Richland County, Case No. 11 CA 103 12
EDWARDS, J., DISSENTING OPINION
{¶55} I respectfully dissent from the analysis and disposition of this case by the
majority.
{¶56} In State of Ohio, Ex Rel Mansfield Motorsport Speedway, LLC, et al. v.
Patrick W. Dropsey, Richland County Auditor, et al., Richland App. No. 2011 CA 0065,
2012-Ohio-968, I wrote a dissenting opinion stating that the trial court should have
allowed the declaratory judgment action to proceed as to the years in which the
appellant was double taxed.
{¶57} Therefore, until such declaratory judgment action occurs and has an end
result, a grant of summary judgment on the foreclosure action for real estate taxes is
premature.
____________________________________
Judge Julie A. Edwards
JAE/rmn
Richland County, Case No. 11 CA 103 13
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BART W. HAMILTON, TREASURER ;
RICHLAND COUNTY, OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MANSFIELD MOTORSPORTS :
SPEEDWAY, LLC, et al., :
:
Defendant-Appellant : Case No. 11 CA 103
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________
___________________________________
___________________________________
JUDGES