I respectfully dissent from the opinion of the majority for two reasons. The first is that R.C. 5721.13, which states that: "[o]ne year after certification of a list of delinquent lands, the county auditor shall make in duplicate a certificate, to be known as a delinquent land tax certificate, of each delinquent tract of land * * *," places a mandatory obligation upon the county auditor to prepare a delinquent land tax certificate, apparently to facilitate the collection of delinquent taxes. The General Assembly did not provide that such a certificate could not be prepared before one year after certification of a list of delinquent lands or that a foreclosure could not be brought if the county auditor prepared the delinquent land tax certificate before one year from such date. While I acknowledge that it can be reasonably argued that the county auditor has no authority to prepare a certificate prior to the one-year period, there is enough ambiguity in the statute to at least support the conclusion that a landowner must show some prejudice resulting from a premature preparation of a delinquent land tax certificate which results in a foreclosure action, if such action is to be declared invalid.
The trial court found that appellant was not prejudiced by the premature preparation of the delinquent land tax certificate. In fact, appellant had previous notice of the delinquent status of his real *Page 344 estate taxes. Appellant argues that he should not be required to pay the costs incurred by the county in filing a foreclosure action and preparation for a certificate of title because he tendered payment of the delinquent taxes before he received notice that a foreclosure action had been filed. The important fact in this regard is that, while the delinquent land tax certificate was delivered to the prosecuting attorney prior to December 15, 1979, the foreclosure action was not filed until December 27, 1979, more than one year after the certification of the list of delinquent lands upon which appellant's land appeared. If the foreclosure action had been filed prior to the anniversary date of the list of delinquent lands, appellant's position would be substantially enhanced. However, because the notice was available to appellant and because he has shown no prejudice as a result of what may be a technical violation of R.C. 5721.13, the trial court did not err in granting a summary judgment to appellee. I would, therefore, affirm the judgment of the trial court.