[Cite as Talarek v. Weaver, 2018-Ohio-2872.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
DANIEL J. TALAREK, LORAIN C.A. No. 17CA011185
COUNTY TREASURER, et al.
Appellees
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
KENNETH A. WEAVER, et al. COUNTY OF LORAIN, OHIO
CASE No. 16TX006716
Appellants
DECISION AND JOURNAL ENTRY
Dated: July 23, 2018
CALLAHAN, Judge.
{¶1} Appellants, Kenneth and Kellie Weaver, appeal from the judgment of the Lorain
County Common Pleas Court in favor of Appellees, the Lorain County Treasurer (“the
Treasurer”) and the Lorain County Land Reutilization Corporation (“the Land Reutilization
Corp.”). For the reasons set forth below, this Court affirms.
I.
{¶2} The Weavers were the titled owners of the real property located at 1133 West
17th Street, in Lorain, Ohio (Permanent Parcel Number 02-01-006-133-013) (“the Property”). In
August 2007, the Weavers were certified as being delinquent for the real estate taxes on the
Property. The structure on the Property was later condemned by the City of Lorain. Pursuant to
an agency agreement between the City of Lorain and the Land Reutilization Corp., the Property
was demolished on April 3, 2013. Demolition costs in the amount of $36,547.07 were certified
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to the Lorain County Auditor on May 6, 2013. As of 2016, the Weavers owed $60,008.83 in
taxes, assessments (including the demolition cost), penalties, and interest.
{¶3} The Treasurer sought to foreclose on the delinquent real estate taxes, assessments,
penalties, and interest and to transfer the Property to the Land Reutilization Corp. without sale
and free and clear of all liens, while the Land Reutilization Corp. sought a personal judgment
against the Weavers for the demolition costs. The Weavers filed their answer. In accordance
with the briefing schedule, the Treasurer and the Land Reutilization Corp. filed a summary
judgment motion and two affidavits. The Weavers filed a brief in opposition and one affidavit,
which was not executed. The Treasurer and the Land Reutilization Corp. filed a reply brief.
{¶4} The trial court granted summary judgment on both claims in favor of the
Treasurer and the Land Reutilization Corp. and against the Weavers. The trial court awarded the
Treasurer an in rem judgment in foreclosure based upon the delinquent real estate taxes and
ordered the Property foreclosed. The trial court found the Property was abandoned, the Land
Reutilization Corp. wished to acquire the Property, and the Treasurer had invoked the statutory
alternative redemption period. The Weavers had twenty-eight days after the judgment to redeem
the Property. Upon the Weavers’ failure to redeem, the Property was ordered to be directly
transferred to the Land Reutilization Corp. and all liens on the Property were discharged.
Additionally, the trial court ordered a personal judgment in favor of the Land Reutilization Corp.
and against the Weavers for the demolition costs.
{¶5} It is from this judgment that the Weavers appeal, raising four assignments of
error. The Weavers do not challenge the foreclosure of the Property and only seek to reverse the
personal judgment awarded against them. To facilitate the analysis, this Court will consolidate
some of the assignments of error.
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II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
APPLIED R.C. []323.78 [AND] R.C. []5722.03 AND ORDERED DIRECT
TRANSFER AND A SIMULTANEOUS MONETARY JUDGMENT IN AN
UNCONSTITUTIONAL MANNER AND PERMITTED THE MACHINERY OF
THE TAX COLLECTION SYSTEM TO VITIATE THE PROTECTIONS
AFFORDED [THE WEAVERS] BY OHIO CONST[ITUTION,] ART[ICLE] I[,
SECTIONS] 1, 19, EQUAL PROTECTION, AND DUE PROCESS
PROTECTIONS AS PROVIDED BY THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION[.] THE TRIAL
COURT COMMITTED PREJUDICIAL ERROR BY GRANTING SUMMARY
JUDGMENT TO [THE TREASURER AND THE LAND REUTILIZATION
CORP.] AND IN SIMULTANEOUSLY ORDERING THE DIRECT
TRANSFER OF THE SUBJECT REAL PROPERTY TO THE [LAND
REUTILIZATION CORP.], A STATE AGENCY, UNDER R.C. []323.78 [AND]
R.C. []5722.03 AND A $36,547.07 PERSONAL JUDGMENT AGAINST [THE
WEAVERS].
ASSIGNMENT OF ERROR NO. 2
AN “UNCONSTITUTIONAL TAKING” OF THE [WEAVERS’] PROPERTY,
EVEN IF SEEMINGLY AUTHORIZED BY STATUTE, IS
CONSTITUTIONALLY PROHIBITED AS A DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS OF LAW, UNLESS THE “JUDICIALLY
ORDERED” TAKING COMPORTS WITH THE CONSTITUTIONAL
REQUIREMENTS OF THE OHIO CONST[ITUTION,] ART[ICLE] I[,
SECTION] 1, 19 AND THE FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION[.] THE TRIAL COURT’S
ORDERED DIRECT TRANSFER AND MONETARY JUDGMENT IN THE
INSTANT MATTER CONSTITUTES A VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT’S JUDGMENT SHOULD BE FOUND TO BE
ERRONEOUSLY UNCONSTITUTIONAL AS IT PERMITTED THE STATE
AND THE MACHINERY OF ITS TAX COLLECTION SYSTEM TO VITIATE
THE PROTECTIONS AFFORDED [THE WEAVERS] BY OHIO
CONST[ITUTION,] ART[ICLE] XII[, SECTION] 2. LIMITATION ON TAX
RATE.
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{¶6} In each of these assignments of error, the Weavers concede that the Constitution
and applicable statutes provide for the direct transfer of their Property to the Land Reutilization
Corp. in a tax foreclosure. However, the Weavers contend that the trial court erred in granting
summary judgment with respect to the personal judgment. The Weavers argue that the award of a
personal judgment against them for real estate taxes in conjunction with the direct transfer of the
Property to the Land Reutilization Corp. is in violation of the Ohio Supreme Court precedent and
constitutional protections. The Court does not reach the merits of these arguments because they
have been forfeited.
{¶7} This Court reviews an award of summary judgment de novo.1 Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is proper under Civ.R. 56 when:
(1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is
entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of
the non-moving party, reasonable minds can only reach one conclusion, and that conclusion is
adverse to the non-moving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317,
327 (1977).
{¶8} Summary judgment consists of a burden-shifting framework. The movant bears
the initial burden of demonstrating the absence of genuine issues of material fact concerning the
essential elements of the non-moving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292
(1996). Specifically, the moving party must support the motion by pointing to some evidence in
the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once the moving party satisfies this
burden, the non-moving party has a reciprocal burden to “set forth specific facts showing that
there is a genuine issue for trial.” Id. at 293. The non-moving party may not rest upon the mere
1
The Weavers agree that the standard of review is de novo, but for different reasons.
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allegations or denials in his pleadings, but instead must submit evidence as outlined in Civ.R.
56(C). Id. at 293; Civ.R. 56(E).
{¶9} On appeal the Weavers do not challenge the constitutionality of any statute.
Instead, the Weavers argue that the trial court’s judgment entry is unconstitutional. Specifically,
the Weavers contend that the personal judgment for real property taxes in conjunction with the
foreclosure of the Property is an unconstitutional taking, violates the due process and equal
protection clauses, is a limitation on the tax rate, and is contrary to Ohio Supreme Court
precedent. While the Weavers opposed summary judgment in the trial court, they did not assert
any of these constitutional arguments and Ohio Supreme Court precedent in opposition to the
claim for personal judgment.
{¶10} The Weavers argue that they did not present these constitutional arguments to the
trial court because the trial court had not yet entered its unconstitutional judgment entry.
Therefore, the constitutional issues were not yet ripe for discussion. Nonetheless, the Weavers
assert that the Treasurer and the Land Reutilization Corp. “should have informed the trial court
that [c]onstitutionally upon the election of the taking of the fee simple title, that there [could] be
no personal judgment issued or taken against the [Weavers].” The Weavers’ position is flawed. If
the constitutional issues were ripe for the Treasurer and the Land Reutilization Corp. to address
at the summary judgment stage, then the issues were also ripe for the Weavers to address during
summary judgment.
{¶11} Moreover, the complaint and the summary judgment motion reflect that the
Treasurer sought an in rem foreclosure judgment and the Land Reutilization Corp. sought a
personal judgment. There was no indication in the record that the Treasurer and the Land
Reutilization Corp. were proceeding under alternative legal theories. The summary judgment
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motion succinctly requested judgment on both causes of action. Accordingly, the Weavers had
notice that both causes of action were being sought simultaneously against them. Thus, it was
incumbent upon the Weavers to challenge at the trial court level whether both causes of action
were constitutionally permissible. They did not.
{¶12} This Court has previously said, “‘[a]lthough this Court conducts a de novo review
of summary judgment, it is nonetheless a review that is confined to the trial court record. The
parties are not given a second chance to raise arguments that they should have raised below.’”
(Emphasis sic.) Roberts v. Reyes, 9th Dist. Lorain No. 10CA009821, 2011-Ohio-2608, ¶ 9,
quoting Owens v. French Village Co., 9th Dist. Wayne No. 98CA0038, 1999 Ohio App. LEXIS
3789, *3-4 (Aug. 18, 1999). Indeed, “[t]he very word ‘review,’” Justice Scalia has pointed out,
“presupposes that a litigant’s arguments have been raised and considered in the tribunal of first
instance.” Freytag v. Commissioner, 501 U.S. 868, 895 (1991) (Scalia, J., concurring in part and
concurring in the judgment). Because the Weavers failed to raise these constitutional arguments
in their brief in opposition to the summary judgment motions, this Court declines to address
these three assignments of error. See Roberts at ¶ 9; see also JPMorgan Chase Bank, Natl. Assn.
v. Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12 (“Arguments that were not raised
in the trial court cannot be raised for the first time on appeal.”).
{¶13} The first, second, and fourth assignments of error are overruled.
ASSIGNMENT OF ERROR NO. 3
“PLAIN ERROR” BY THE TRIAL COURT EXISTS AS ITS JUDGMENT
ENTRY IS IN VIOLATION OF THE OPERATIVE PROVISIONS OF
FEDERAL AND STATE CONSTITUTIONAL PROTECTIONS AGAINST
GOVERNMENTAL TAKINGS, THE CONSTITUTIONAL APPLICATION
OF OHIO STATUTES CITED BY THE TRIAL COURT ALLOWING
“DIRECT TRANSFER” AS A “CONSTITUTIONAL TAKING” MUST BE
ALLOWED ONLY WITH COMPLIANCE OF THAT PRECEDENT AS
ESTABLISHED BY THE OHIO SUPREME COURT BE FOLLOWED[.] THE
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TRIAL COURT COMMITTED PREJUDICIAL “PLAIN ERROR” BY
GRANTING SUMMARY JUDGMENT TO [THE TREASURER AND THE
LAND REUTILIZATION CORP.] ORDERING A DIRECT TRANSFER AND
A $36,547.07 PERSONAL JUDGMENT AGAINST THE [WEAVERS].
{¶14} In their third assignment of error, the Weavers assert that “[t]he trial court
committed plain error and caused [the Weavers] to suffer an unconstitutional taking without ‘just
compensation’ by simultaneously ordering both the direct real estate transfer and a $36,547.07
personal judgment against [them].” This Court disagrees.
{¶15} Similar to the other assignments of error, the third assignment of error challenges
the trial court’s grant of a personal judgment against the Weavers as being unconstitutional. As
addressed above, these constitutional challenges were not raised in the trial court. Accordingly,
the Weavers have forfeited all but plain error, which they now raise in their third assignment of
error.
{¶16} A plain error is one that is “obvious and prejudicial although neither objected to
nor affirmatively waived which, if permitted, would have a material adverse effect on the
character and public confidence in judicial proceedings.” Schade v. Carnegie Body Co., 70 Ohio
St.2d 207, 209 (1982). The Supreme Court of Ohio set forth the plain error standard as follows:
In appeals of civil cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously affects
the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.
Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. Thus, in civil cases plain error has a
narrow application and is applied with the “utmost caution.” See id. at 121. See also Dragway
42, L.L.C. v. Kokosing Constr. Co., 9th Dist. Wayne No. 09CA0073, 2010-Ohio-4657, ¶ 27.
{¶17} The Weavers contend that plain error exists because they suffered an
unconstitutional taking without just compensation when the trial court granted the foreclosure
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and directly transferred the Property to the Land Reutilization Corp. and granted a personal
judgment on the property taxes. “Both the United States and the Ohio Constitutions provide that
private property shall not be taken for public use without just compensation.” State ex rel.
R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, ¶ 33, citing Fifth and Fourteenth
Amendments to the U.S. Constitution; Article I, Section 19, Ohio Constitution.
{¶18} The Takings Clause is not applicable in this matter for two reasons. First, while
the Weavers’ property was taken via a tax foreclosure, they are not challenging the foreclosure
judgment, only the personal judgment. Second, the record does not reflect that the Weavers ever
sought and were denied compensation for their Property. See Stewart v. Woods Cove II, L.L.C.,
8th Dist. Cuyahoga No. 105160, 2017-Ohio-8314, ¶ 36 (Keough, J., dissenting) (the owner must
have sought and been denied just compensation for the taking of the property). Instead, there is a
personal judgment against the Weavers for demolition costs related to the Property. Based on
these facts, there was no unconstitutional taking and no plain error occurred.
{¶19} The Weavers also assert that plain error exists because Ohio Supreme Court
precedent has “established that no personal obligation for a real property tax liability can exist
upon any owner of that property that is foreclosed upon for tax debt.” (Emphasis deleted.)
While it is true that real estate taxes run with the land and become a lien on the land, Southern
Ohio Savs. Bank & Trust Co. v. Bolce, 165 Ohio St. 201, 208 (1956), and certified demolition
costs are assessments and treated as a tax lien, Cleveland Metro. Hous. Auth. v. Lincoln Property
Mgt. Co., 22 Ohio App.2d 157, 160-161 (8th Dist.1970), the Weavers disregard the application
of R.C. 715.261 in this case.
{¶20} R.C. 715.261(B)(1), (2) and (H) provide that when demolition costs have been
certified as a lien on the tax duplicate and subsequently extinguished due to the transfer of the
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parcel to a land reutilization corporation, a civil action may be instituted by the municipal
corporation to recover the demolition costs against the persons who held title to the parcel at the
time the costs were incurred. In this case, the trial court’s judgment entry ordered that upon
transfer of the Property to the Land Reutilization Corp. “all impositions and any other liens on
the [P]roperty [] shall be deemed forever satisfied and discharged.” The Weavers agree that the
demolition lien was satisfied but contend it is “impossible” to have a personal judgment against
them by any entity. However, R.C. 715.261(B)(1), (2) and (H) provides for a personal judgment
against the Weavers to recover the demolition costs in conjunction with a tax foreclosure
involving the direct transfer of property to the Land Reutilization Corp. upon the extinguishment
of the lien.
{¶21} Notably, the Weavers’ plain error argument did not challenge whether the
personal judgment was entered in favor of the proper entity. “When a [party] fails to undertake a
plain-error analysis, this Court will not create an argument on [the party’s] behalf.” State v.
Chapman, 9th Dist. Summit No. 28626, 2018-Ohio-1142, ¶ 23. Accordingly, this Court makes
no determination as to whether the proper entity instituted the civil action for the personal
judgment. Accordingly, the Weavers have failed to demonstrate that the personal judgment
against them is a result of plain error.
{¶22} In addition to disregarding the application of R.C. 715.261, the Weavers also
failed to challenge the constitutionality of this statute. While the Weavers have asserted plain
error arguments, the constitutionality of R.C. 715.261 was not one of those arguments. Again,
this Court will not create a plain error argument for a party that fails to develop the plain error
analysis. Chapman at ¶ 23.
{¶23} The Weavers’ third assignment of error is overruled.
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III.
{¶24} Kenneth and Kellie Weavers’ assignments of error are overruled. The judgment
of the Lorain County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:
ROBERT J. GARGASZ, Attorney at Law, for Appellants.
DENNIS P. WILL, Prosecuting Attorney, and CHRIS A. PYANOWSKI, Assistant Prosecuting
Attorney, for Appellees.