Antonious v. Selvaggio

2022 Ohio 4056

• Court: Ohio Court of Appeals
• Decided: November 14, 2022
• Docket: 2022-L-047
• Status: Published

Opinion

[Cite as Antonious v. Selvaggio, 2022-Ohio-4056.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

NASHAAT ANTONIOUS, et al., CASE NO. 2022-L-047

Plaintiffs, Civil Appeal from the - vs - Court of Common Pleas

BRANDON SELVAGGIO, et al., Trial Court No. 2016 CF 001567 Defendant-Appellant,

- vs -

TAX EASE OHIO, LLC, US BANK AS CUSTODIAN, et al.,

Defendant-Appellee.

OPINION

Decided: November 14, 2022 Judgment: Affirmed

Richard D. Eisenberg, P.O. Box 43083, Richmond Heights, OH 44143 (For Defendant- Appellant).

Daniel A. Friedlander, Weltman, Weinberg & Reis Co., LPA, 965 Keynote Circle, Cleveland, OH 44131 (For Defendant-Appellee).

MARY JANE TRAPP, J.

{¶1} Appellant, Brandon Selvaggio (“Mr. Selvaggio”), appeals the judgment of

the Lake County Court of Common Pleas granting summary judgment to appellee, Tax

Ease Ohio, LLC, US Bank as Custodian (“Tax Ease”), on its cross-claim for the

foreclosure of tax liens. {¶2} Mr. Selvaggio asserts one assignment of error, contending that the trial

court erred by granting Tax Ease’s motion for summary judgment because there were

genuine issues of material fact. Specifically, Mr. Selvaggio contends that the tax

certificates upon which Tax Ease sought to foreclose are void because the county

treasurer failed to send him written notice of their sale pursuant to R.C. 5721.33(K).

{¶3} After a careful review of the record and pertinent law, we find that Mr.

Selvaggio’s assignment of error lacks merit. The county treasurer’s compliance with R.C.

5721.33(K) was not an issue of “material fact” precluding summary judgment in favor of

Tax Ease. Even if the county treasurer failed to comply with R.C. 5721.33(K), such

noncompliance would not create a legal basis upon which to invalidate the tax certificates.

{¶4} Thus, we affirm the judgment of the Lake County Court of Common Pleas.

Substantive and Procedural History

{¶5} The underlying matter arose in 2016 when the plaintiffs, Nashaat Antonious

and JERMC Management Corp., filed a complaint against Mr. Selvaggio and others in

the Lake County Court of Common Pleas seeking to foreclose on a judgment lien

encumbering three parcels of real property in Mentor, Ohio (“the Mentor properties”).

{¶6} Tax Ease was a named defendant as the holder of recorded tax certificates

on the Mentor properties. Tax Ease also held two recorded tax certificates in relation to

Mr. Selvaggio’s real property at 10640 Bayshire Trail, Willoughby, Ohio (“the Bayshire

property”). Tax Ease purchased the tax certificates from the Lake County Treasurer in

2015 (certificate nos. 15-204 and 15-431). During the pendency of the plaintiffs’

foreclosure action, Tax Ease purchased two additional tax certificates from the county

treasurer in relation to the Bayshire property (certificate nos. 16-276 and 17-173).

Case No. 2022-L-047 {¶7} In 2018, with leave of court, Tax Ease filed cross-claims to foreclose on its

tax certificates encumbering the Mentor properties and the Bayshire property. Following

the litigation of issues not relevant to this appeal, Tax Ease voluntarily dismissed its cross-

claim involving the Mentor properties. In 2022, with leave of court, Tax Ease filed a motion

for summary judgment in relation to the Bayshire property.

{¶8} Mr. Selvaggio filed a brief in opposition, contending, in relevant part, that

the county treasurer failed to comply with R.C. 5721.33(K), which required it to send

written notice of the tax certificate sales to Tax Ease, rendering the tax certificates void

and unenforceable. In support, he attached an affidavit averring that he resided at the

Bayshire property at all relevant times; that he never received notice that the certificates

had been sold; and that the case file at the clerk of court’s office does not contain a signed

return receipt card.

{¶9} The trial court filed a judgment entry and decree of foreclosure granting Tax

Ease’s motion for summary judgment. The trial court determined that Tax Ease was

entitled to the foreclosure of its lien interests and was permitted to file a praecipe for an

order of sale.

{¶10} Mr. Selvaggio appealed and presents the following assignment of error:

{¶11} “The Trial Court committed prejudicial error in granting Crossclaim

Appellee, Tax Ease Ohio, LLC’s Renewed Motion for Summary Judgment, when there

remained material issues of fact to be tried.”

Standard of Review

{¶12} We review a trial court’s order granting summary judgment de novo. Sabo

v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9. “A de novo

review requires the appellate court to conduct an independent review of the evidence 3

Case No. 2022-L-047 before the trial court without deference to the trial court’s decision.” Peer v. Sayers, 11th

Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.

{¶13} Summary judgment is proper when (1) no genuine issue as to any material

fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law;

and (3) it appears from the evidence, viewing that evidence most strongly in favor of the

nonmoving party, that reasonable minds can come to but one conclusion, which is

adverse to the nonmoving party. Civ.R. 56(C). The initial burden is on the moving party

to demonstrate that no issue of material fact exists and that the moving party is entitled

to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d

264 (1996). If the movant meets this burden, the burden shifts to the nonmoving party to

establish that a genuine issue of material fact exists for trial. Id. at 293.

{¶14} However, not every factual dispute precludes summary judgment. Oliveri

v. OsteoStrong, 2021-Ohio-1694, 171 N.E.3d 386, ¶ 15 (11th Dist.). Rather, “‘[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.’” Turner v. Turner, 67 Ohio St.3d 337,

340, 617 N.E.2d 1123 (1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Law and Analysis

{¶15} In his sole assignment of error, Mr. Selvaggio contends that the trial court

erred in granting summary judgment to Tax Ease because there were genuine issues of

material fact for trial. Specifically, he argues that the tax certificates encumbering the

Bayshire property are “void ab initio” because the county treasurer did not send him

written notice of their sale pursuant to R.C. 5721.33(K).

Case No. 2022-L-047 {¶16} “‘Ohio’s tax certificate legislation, R.C. 5721.30 through 5721.43, allows a

county government to sell tax certificates to private investors. A tax certificate entitles the

certificate holder to the first lien on the real property. A property owner can redeem the

certificate and remove the lien by paying the certificate holder the purchase price plus

interest, penalties, and costs. If the property owner fails to redeem the certificates, the

tax certificate holder may initiate foreclosure proceedings on the real property after

complying with certain statutory requirements.’” (Citations omitted.) PNC Bank Natl.

Assn. v. Graham, 11th Dist. Lake No. 2021-L-076, 2022-Ohio-888, ¶ 6, quoting Woods

Cove II, L.L.C. v. Am. Guaranteed Mgt. Co., L.L.C., 8th Dist. Cuyahoga No. 103652, 2016-

Ohio-3177, ¶ 2.

{¶17} To demonstrate its entitlement to summary judgment, Tax Ease was

required to submit evidence to show (1) the purchase of the tax liens, (2) the amounts

due, (3) the statutory notice of intent to foreclose, and (4) documents indicating that Mr.

Selvaggio is the owner of the Bayshire property. See Tax Ease Ohio, LLC v. Blankenship,

2d Dist. Montgomery No. 27168, 2017-Ohio-2786, ¶ 13.

{¶18} This case implicates the first element, i.e., Tax Ease’s purchase of the tax

liens. The record establishes that Tax Ease purchased the tax certificates pursuant to

R.C. 5721.33, which provides that “[a] county treasurer may, in the treasurer’s discretion,

negotiate the sale or transfer of any number of tax certificates with one or more persons,

including a county land reutilization corporation.” R.C. 5721.33(A). The statutory sale

process is as follows:

{¶19} First, “[t]he county treasurer shall adopt rules governing the eligibility of

persons to purchase tax certificates or to otherwise participate in a negotiated sale under

this section.” R.C. 5721.33(E)(1). 5

Case No. 2022-L-047 {¶20} Second, “[a]ny person that intends to purchase a tax certificate in a

negotiated sale shall submit an affidavit to the county treasurer that establishes

compliance with the applicable eligibility criteria and includes any other information

required by the treasurer.” R.C. 5721.33(E)(2).

{¶21} Third, “[t]he purchaser in a negotiated sale under this section shall deliver

the certificate purchase price or other consideration, plus any applicable premium and

less any applicable discount and including any noncash consideration, to the county

treasurer not later than the close of business on the date the tax certificates are delivered

to the purchaser.” R.C. 5721.33(F). “The purchaser also shall pay on the date the tax

certificates are delivered to the purchaser the fee, if any, negotiated under division (J) of

this section.” Id.

{¶22} Fourth, “[u]pon receipt of the full payment from the purchaser of the

certificate purchase price or other agreed-upon consideration, plus any applicable

premium and less any applicable discount, and the negotiated fee, if any, the county

treasurer * * * shall issue the tax certificate and record the tax certificate sale by entering

into a tax certificate register the certificate purchase price, any premium paid or discount

taken, the certificate rate of interest, the date the certificates were sold, the name and

address of the certificate holder or, in the case of issuance of the tax certificates in a

book-entry system, the name and address of the nominee, and any other information the

county treasurer considers necessary.” R.C. 5721.33(G). “The county treasurer also

shall transfer the tax certificates to the certificate holder.” Id. “Upon issuing the tax

certificates, the delinquent taxes that make up the certificate purchase price are

transferred, and the superior lien of the state and its taxing districts for those delinquent

taxes is conveyed intact to the certificate holder or holders.” Id. 6

Case No. 2022-L-047 {¶23} “Upon the sale and delivery of a tax certificate, the tax certificate vests in

the certificate holder the first lien previously held by the state and its taxing districts under

section 5721.10 of the Revised Code for the amount of taxes, assessments, interest, and

penalty charged against a certificate parcel, superior to all other liens and encumbrances

upon the parcel described in the tax certificate, in the amount of the certificate redemption

price, except liens for delinquent taxes that attached to the certificate parcel prior to the

attachment of the lien being conveyed by the sale of such tax certificate.” R.C.

5721.35(A). In addition, “[t]he tax certificate purchased by the certificate holder is

presumptive evidence in all courts and boards of revision and in all proceedings,

including, without limitation, at the trial of the foreclosure action, of the amount and validity

of the taxes, assessments, charges, penalties by the court and added to such principal

amount, and interest appearing due and unpaid and of their nonpayment.” R.C.

5721.37(F).

{¶24} Mr. Selvaggio’s argument is based on R.C. 5721.33(K), which, at the time

Tax Ease purchased the tax certificates, provided as follows:

{¶25} “After selling tax certificates under this section, the county treasurer shall

send written notice by certified mail to the last known tax-mailing address of the owner of

the certificate parcel. The notice shall inform the owner that a tax certificate with respect

to such owner’s parcel was sold or transferred and shall describe the owner’s options to

redeem the parcel, including entering into a redemption payment plan under division

(C)(2) of section 5721.38 of the Revised Code. However, the county treasurer is not

required to send a notice under this division if the treasurer previously has attempted to

Case No. 2022-L-047 send a notice to the owner of the parcel at the owner’s last known tax-mailing address

and the postal service has returned the notice as undeliverable.” (Emphasis added.)1

{¶26} The parties dispute whether the county treasurer complied with R.C.

5721.33(K), although neither party issued discovery to the county treasurer. Tax Ease

argues there is a presumption that a public official has discharged his or her official duties

in accordance with law. Mr. Selvaggio argues that he raised an issue of material fact in

his affidavit, where he averred that he never received written notice of the tax certificate

sales.

{¶27} Based on our de novo review, we find that the county treasurer’s

compliance with R.C. 5721.33(K) was not an issue of “material fact” precluding summary

judgment in favor of Tax Ease. Even if the county treasurer failed to comply with R.C.

5721.33(K), there is no legal basis upon which to invalidate the tax certificates.

{¶28} As an initial matter, there is no language in R.C. 5721.33(K) or elsewhere

that supports Mr. Selvaggio’s position. He also cites no case law in which a court has

invalidated a tax lien on this or any similar basis.

{¶29} In addition, the statutory text expressly contradicts Mr. Selvaggio’s

assertion that the county treasurer’s compliance with R.C. 5721.33(K) is a “condition

precedent” to a valid tax certificate sale. The Supreme Court of Ohio has defined a

“condition precedent” as “one that is to be performed before the agreement becomes

effective, and which calls for the happening of some event or the performance of some

1. Effective November 2, 2018, the first sentence of R.C. 5721.33(K) was amended to state, “After selling tax certificates under this section, the county treasurer shall send written notice to the owner of the certificate parcel by either certified mail or, if the treasurer has record of an internet identifier of record associated with the owner, by ordinary mail and by that internet identifier of record. A mailed notice shall be sent to the owner’s last known tax-mailing address of the owner of the certificate parcel.” (Bolding and redlining added.) The 2018 amendments do not affect the issues on appeal. 8

Case No. 2022-L-047 act after the terms of the contract have been agreed on, before the contract shall be

binding on the parties.” Mumaw v. W. & S. Life Ins. Co., 97 Ohio St. 1, 119 N.E. 132

(1917), syllabus; see Wroblesky v. Hughley, 2021-Ohio-1063, 169 N.E.3d 709, ¶ 45 (11th

Dist.), appeal not accepted, 164 Ohio St.3d 1421, 2021-Ohio-2923, 172 N.E.3d 1049. As

indicated, a tax certificate becomes effective upon “sale and delivery.” R.C. 5721.35(A).

The county treasurer’s written notice obligation under R.C. 5721.33(K) expressly arises

“[a]fter selling tax certificates.” (Emphasis added.)

{¶30} We further disagree with Mr. Selvaggio’s suggestion that the alleged lack of

written notice precluded him from exercising his right to redeem the Bayshire property

pursuant to R.C. 5721.38(C)(2). That provision provides, “During the period beginning

on the date a tax certificate is sold under section 5721.33 of the Revised Code and ending

on the date the decree is rendered on the foreclosure proceeding under division (F) of

section 5721.37 of the Revised Code, the owner of record of the certificate parcel, or any

other person entitled to redeem that parcel, may enter into a redemption payment plan

with the certificate holder and all secured parties of the certificate holder.” (Emphasis

added.)

{¶31} A property owner’s redemption rights under R.C. 5721.38(C)(2) are not

dependent on the issuance of written notice under R.C. 5721.33(K). Rather, the notice

simply describes the property owner’s existing redemption rights. See id. (“The notice *

* * shall describe the owner’s options to redeem the parcel, including entering into a

redemption payment plan under division (C)(2) of section 5721.38 of the Revised Code”).

Despite the fact that Tax Ease filed its cross-claims in 2018, there is no indication in the

record that Mr. Selvaggio attempted to exercise his redemption rights at any time during

the protracted litigation. See Aurora Bank F.S.B. v. Gordon, 8th Dist. Cuyahoga No. 9

Case No. 2022-L-047 103138, 2016-Ohio-938, ¶ 26 (“[Appellant]’s protracted litigation and failure to make any

offer of payment belie her claim that timely notice of the purchaser’s deposit would have

prompted her to exercise her right to redemption”). Further, we note that Mr. Selvaggio

is entitled to redeem the Bayshire property at any time before the confirmation of a sale.

See R.C. 5721.38(B).

{¶32} On appeal, Mr. Selvaggio contends that the county treasurer’s alleged

failure to comply with R.C. 5721.33(K) violated his constitutional right to due process.

Since Mr. Selvaggio did not raise this due process claim in the trial court, it is waived.

Atlantic Mtge. & Invest. Corp. v. Sayers, 11th Dist. Ashtabula No. 2000-A-0081, 2002 WL

331734, *3 (Mar. 1, 2002). In any event, a party must demonstrate prejudice resulting

from an alleged due process violation. See State v. Nagle, 11th Dist. Lake No. 99-L-089,

2000 WL 777835, *6 (June 16, 2000). Mr. Selvaggio has not alleged, much less

demonstrated, the existence of prejudice. And, as explained above, his redemption rights

were not prejudiced.

{¶33} In sum, the county treasurer’s compliance with R.C. 5721.33(K) was not an

issue of “material fact” precluding summary judgment in favor of Tax Ease. Accordingly,

the trial court did not err in granting summary judgment to Tax Ease.

{¶34} Mr. Selvaggio’s sole assignment of error is without merit.

{¶35} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur. 10

Case No. 2022-L-047