[Cite as Sri Saibaba Temple Soc. of Ohio v. Tax Ease Ohio II, L.L.C., 2021-Ohio-3294.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SRI SAIBABA TEMPLE SOCIETY OF JUDGES:
OHIO Hon. John W. Wise, P. J.
Hon. W. Scott Gwin, J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
-vs-
Case No. 20 CA E 12 0055
TAX EASE OHIO II, LLC
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 19 CV E 04 0211
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 20, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
SANJAY K. BHATT DAVID T. BRADY
2935 Kenny Road SUZANNE M. GODENSWAGER
Suite 225 AUSTIN B. BARNES III
Columbus, Ohio 43221 MARK M. SCHONHUT
JEFFREY A. PANEHAL
For Treasurer SANDHU LAW GROUP, LLC
1213 Prospect Avenue
VINCE J. VILLIO Suite 300
145 North Union Street, 3rd Floor Cleveland, Ohio 44115
P. O.Box 8006
Delaware, Ohio 43015
Delaware County, Case No. 20 CA E 12 0055 2
Wise, J.
{¶1} Appellant Sri Saibaba Temple Society of Ohio, appeals from the November
19, 2020, Judgment Entry by the Delaware County Court of Common Pleas. Appellee is
Tax Ease Ohio II, LLC. The relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 6, 2014, Appellant was deeded property located at 2530
Lewis Center, Lewis Center, Ohio 43035 (“disputed property”).
{¶3} On December 31, 2015, Appellant applied for an exemption from real
property tax for religious purposes.
{¶4} On September 9, 2016, the Tax Commissioner denied Appellant’s
exemption.
{¶5} On October 24, 2016, Appellant appealed the Tax Commissioner’s decision
to the Ohio Board of Tax Appeals.
{¶6} On April of 2017 through December of 2018, the Delaware County
Treasurer sold tax certificates on disputed property to Appellee.
{¶7} On January 10, 2018, the Ohio Board of Tax Appeals ruled that the property
was to be split between tax exempt and taxable. The barn is to be tax exempt, with the
rest of the property taxable.
{¶8} On April 16, 2019, Appellee filed a Complaint in the Delaware County Court
of Common Pleas seeking the tax certificates be declared a valid statutory lien, for the
property to be foreclosed, sold at auction, and the proceeds of sale be paid first to
Appellee.
{¶9} On December 2, 2019, Appellee filed a Motion for Summary Judgment.
Delaware County, Case No. 20 CA E 12 0055 3
{¶10} On January 29, 2020, the trial court denied Appellee’s Motion for Summary
Judgment.
{¶11} On August 21, 2020, Appellee filed a Renewed Motion for Summary
Judgment.
{¶12} On October 26, 2020, the trial court granted Appellee’s Renewed Motion for
Summary Judgment.
{¶13} In its Judgment entry dated November 19, 2020, the trial court ordered the
foreclosure and sale of disputed property with the proceeds being paid first to cover the
any costs arising from the current case, then to the Plaintiff, and any excess to be held
pending further order.
ASSIGNMENT OF ERROR
{¶14} In Appellant’s December 18, 2020, appeal, Appellant raises the following
Assignment of Error:
{¶15} “I. THE TRIAL COURT ERRED IN RULING THAT THE SUBJECT REAL
PROPERTY COULD BE INCLUDED IN THE LIST OF DELINQUENT LANDS FOR A
TAX LIEN CERTIFICATES [SIC] DURING THE PENDENCY OF AN APPEAL WITH
THE OHIO BOARD OF TAX APPEALS.”
I.
{¶16} In Appellant’s sole Assignment of Error, Appellant argues the trial court
erred by ruling the disputed property could be included on the list of delinquent lands for
tax lien certificates while an appeal with the Ohio Board of Tax Appeals is pending. We
disagree.
Delaware County, Case No. 20 CA E 12 0055 4
{¶17} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may
grant summary judgment if it determines: (1) no genuine issues as to any material fact
remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion
and viewing such evidence most strongly in favor of the party against whom the motion
for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977).
{¶18} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶19} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). Once the moving party has met this initial burden, the nonmoving party then has
a reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing
that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798, 801 (1988).
Delaware County, Case No. 20 CA E 12 0055 5
{¶20} R.C. 5721.011 states, “[l]ands on which the only unpaid taxes are amounts
claimed in good faith not to be due in complaints pending under section 5715.19 of the
Revised Code and lands that are the subject of an application for exemption from
taxation under section 5715.27 of the Revised Code shall not be included on the list.”
{¶21} R.C. 5715.27 in pertinent part states, “the owner * * * may file an application
with the tax commissioner, on forms prescribed by the commissioner, requesting that
such property be exempted from taxation[.]”
{¶22} R.C. 5717.02 grants the Board of Tax Appeals (“BTA”) jurisdiction over
claims arising out of R.C. 5715.27. R.C. 5717.02(A) in pertinent part states, “Appeals
from a decision of the tax commissioner or county auditor concerning an application for
property tax exemption may be taken to the board of tax appeals by the applicant or by
a school district that filed a statement concerning that application under division (C) of
section 5715.27 of the Revised Code.”
{¶23} When a statute is plain and unambiguous, the Court applies the statute as
written. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846
N.E.2d 478, ¶52, citing State ex. rel. Savarese v. Buckeye Local School Dist. Bd. of Edn.,
74 Ohio St.3d 543, 545, 1996-Ohio-291, 600 N.E.2d 463.
{¶24} A plain reading of R.C. 5721.011 reveals, in pertinent part, that the county
auditor must include all delinquent lands in the county unless the lands are the subject
of a pending application filed under R.C. 5715.27. The Tax Commissioner entered a final
judgment on Appellant’s exemption application on September 9, 2016. The county did
not sell tax certificates on the disputed property until April of 2017. Therefore, the county
Delaware County, Case No. 20 CA E 12 0055 6
auditor was not authorized to leave the disputed property off of the listing as no
application from taxation was pending under R.C. 5715.27.
{¶25} Appellant argues that their appeal of the Tax Commissioner’s decision to
the Board of Tax Appeals under R.C. 5717.02 should prohibit the county auditor from
listing the disputed property as delinquent. However, if the legislature intended to prohibit
the county auditor from listing properties subject to a decision from the Board of Tax
Appeals under 5717.02, it would have expressly written R.C. 5721.011 that way. We find
the trial court did not err in granting summary judgment.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/br 0915