[Cite as Cooper v. Westerville, 2013-Ohio-4652.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
TIM H. COOPER JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13 CAE 02 0011 CITY OF WESTERVILLE, OHIO, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 11 CVH 06 0735
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 21, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellant Treasurer
AMBROSE MOSES, III CAROL HAMILTON O'BRIEN 1900 Polaris Parkway, Suite 450 PROSECUTING ATTORNEY Columbus, Ohio 43240 CHRISTOPHER D. BETTS ASSISTANT PROSECUTOR 140 North Sandusky Street 3rd Floor Delaware, Ohio 43015
For Defendant-Appellant Commercial
SEAN A. MARTIN BECK & MARTIN 102 East Findlay Street Carey, Ohio 43316 Delaware County, Case No. 13 CAE 02 0011 2
Wise, J.
{¶1} Appellant Tim H. Cooper appeals the decision of the Court of Common
Pleas, Delaware County, which granted summary judgment and/or judgment in favor of
Appellee Commercial Savings Bank and Appellee Delaware County Treasurer in an
action by appellant challenging certain real estate tax assessments. The relevant facts
leading to this appeal are as follows.
{¶2} In 2005, Appellant Cooper purchased two commercial real estate parcels
(hereinafter collectively “the property”) located on Office Parkway in Westerville,
Delaware County, Ohio. The first parcel is identified as number 317-334-03-004-502,
located at 612 Office Parkway, Unit A, Westerville, Ohio. The second parcel is
identified as number 317-334-03-004-503, located at 612 Office Parkway, Unit B,
Westerville, Ohio.
{¶3} Appellant’s purchase was secured by a mortgage through Appellee
Commercial Savings Bank. Appellant maintains that one of the incentives that originally
persuaded him to enter the real estate purchase contract was that a portion of the real
estate taxes would be abated or exempted. Appellant thereafter owned the property
from 2005 until 2013.
{¶4} On June 23, 2011, appellant filed a civil complaint in the Delaware County
Court of Common Pleas against the City of Westerville, Office Park LLC (both as an
Ohio and a Delaware limited liability company), Appellee Commercial Savings Bank,
and others, alleging deprivation of his constitutional rights under 42 U.S.C. 1983, fraud,
breach of contract, promissory estoppel, tortious interference with contract, and
misrepresentation. According to appellant, this followed events in 2010 wherein the Delaware County, Case No. 13 CAE 02 0011 3
City of Westerville represented to the Delaware County Auditor that appellant was
delinquent on “payment in lieu of tax” (PILOT) fee payments, that his tax exemption
was revoked, and that the unpaid PILOT fees were to be assessed as delinquent real
estate taxes against the property.
{¶5} On July 18, 2011, appellant filed an amended complaint against the City of
Westerville, Office Park LLC (both as an Ohio and a Delaware limited liability
company), Appellee Commercial Savings Bank, and others, alleging deprivation of his
constitutional rights under 42 U.S.C. 1983, fraud, breach of contract, promissory
estoppel, tortious interference with contract, misrepresentation, and abuse of process.
{¶6} Neither the Delaware County Treasurer nor the Delaware County Auditor
were named as parties in the original complaint or amended complaint. On December
15, 2011, Appellee Delaware County Treasurer was granted leave to intervene in the
case.
{¶7} On March 14, 2012, appellant filed a second amended complaint against
the City of Westerville, Office Park LLC (both as an Ohio and a Delaware limited
liability company), Appellee Commercial Savings Bank, and Attorney Charles L.
Bartholomew, alleging deprivation of his constitutional rights (citing Article I of the Ohio
Constitution), negligence, fraud, breach of contract, promissory estoppel, tortious
interference with contract, misrepresentation, abuse of process, civil conspiracy, and
mutual mistake.
{¶8} Following trial court rulings in regard to the various responsive pleadings
and counterclaims, which we need not recite herein, the following claims remained as
of April 18, 2012: Delaware County, Case No. 13 CAE 02 0011 4
{¶9} (1) Appellant’s claims against Appellee Commercial Savings Bank under
the second amended complaint; (2) Appellee Commercial Savings Bank’s counterclaim
against appellant filed November 22, 2011, based on the note and mortgage; and (3)
Appellee Delaware County Treasurer’s counterclaim against appellant filed December
20, 2011, based on alleged taxes, interest, and penalties.
{¶10} On August 6, 2012, Appellee Commercial Savings Bank filed a motion for
summary judgment. On September 6, 2012, appellant dismissed all of his claims
against Appellee Commercial Savings Bank; however, the bank’s counterclaim
remained. Via a judgment entry filed January 23, 2013, the trial court granted summary
judgment in favor of Appellee Commercial Savings Bank on said counterclaim. This left
only Appellee Delaware County Treasurer’s counterclaim against appellant, which the
court had previously scheduled for trial.
{¶11} On January 23, 2013, following a bench trial, the trial court issued a
judgment entry in favor of Appellee Delaware County Treasurer on his counterclaim,
granting foreclosure on a lien for real estate taxes and the current and delinquent real
estate taxes due in regard to the property at issue.
{¶12} Appellant filed a notice of appeal on February 21, 2013. He herein raises
the following three Assignments of Error:
{¶13} “I. WHERE THE CITY OF WESTERVILLE, OHIO ORDERED COOPER
TO GIVE THE CITY A PAYMENT IN LIEU OF TAX (PILOT FEE) PURSUANT TO A
R.C. 3735.671 COMMUNITY REINVESTMENT AREA AGREEMENT TO WHICH
COOPER WAS NOT A PARTY; THEN FAILED TO PROVIDE COOPER WITH
NOTICE REQUIRED BY R.C. 3735.68 THAT THE TAX EXEMPTION WAS Delaware County, Case No. 13 CAE 02 0011 5
REVOKED; THEN FAILED TO GIVE COOPER NOTICE OF HIS R.C. 3735.70
APPEAL RIGHTS; THEN CERTIFIED TO THE DELAWARE COUNTY AUDITOR
THAT THE UNPAID PILOT FEES WERE NOW A DELINQUENT TAX TO BE
ASSESSED UPON COOPER'S REAL ESTATE IMPROVEMENTS, IT WAS A DENIAL
OF DUE PROCESS AND ERROR FOR THE COURT OF COMMON PLEAS FOR
DELAWARE COUNTY TO ENTER A JUDGMENT IN FAVOR OF THE COUNTY
TREASURER AGAINST COOPER FOR THAT PORTION OF THE ALLEGED UNPAID
TAXES THAT BEGAN AS A PILOT FEE PURSUANT TO A R.C. 3735.671
COMMUNITY REINVESTMENT AREA AGREEMENT TO WHICH COOPER WAS
NOT A PARTY.
{¶14} “II. WHERE THE PROPERTY OWNER CHALLENGES THE VALIDITY
OF AN ALLEGED REAL ESTATE TAX OBLIGATION THAT PURPORTEDLY AROSE
FROM A R.C. 3735.671 COMMUNITY REINVESTMENT AREA AGREEMENT TO
WHICH THE PROPERTY OWNER WAS NOT A PARTY, THE TRIAL COURT ERRED
AND DENIED THE PROPERTY OWNER DUE PROCESS WHEN THE COURT SUA
SPONTE JOINED THE COUNTY TREASURER INSTEAD OF THE COUNTY
AUDITOR AS A PARTY IN THE CASE.
{¶15} “III. WHERE A NOTE IS AMBIGUOUS BECAUSE IT CONTAINS TWO
DIFFERENT LOAN AMOUNTS AND THE PARTIES WERE MUTUALLY MISTAKEN
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[Cite as Cooper v. Westerville, 2013-Ohio-4652.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
TIM H. COOPER JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13 CAE 02 0011 CITY OF WESTERVILLE, OHIO, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 11 CVH 06 0735
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 21, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellant Treasurer
AMBROSE MOSES, III CAROL HAMILTON O'BRIEN 1900 Polaris Parkway, Suite 450 PROSECUTING ATTORNEY Columbus, Ohio 43240 CHRISTOPHER D. BETTS ASSISTANT PROSECUTOR 140 North Sandusky Street 3rd Floor Delaware, Ohio 43015
For Defendant-Appellant Commercial
SEAN A. MARTIN BECK & MARTIN 102 East Findlay Street Carey, Ohio 43316 Delaware County, Case No. 13 CAE 02 0011 2
Wise, J.
{¶1} Appellant Tim H. Cooper appeals the decision of the Court of Common
Pleas, Delaware County, which granted summary judgment and/or judgment in favor of
Appellee Commercial Savings Bank and Appellee Delaware County Treasurer in an
action by appellant challenging certain real estate tax assessments. The relevant facts
leading to this appeal are as follows.
{¶2} In 2005, Appellant Cooper purchased two commercial real estate parcels
(hereinafter collectively “the property”) located on Office Parkway in Westerville,
Delaware County, Ohio. The first parcel is identified as number 317-334-03-004-502,
located at 612 Office Parkway, Unit A, Westerville, Ohio. The second parcel is
identified as number 317-334-03-004-503, located at 612 Office Parkway, Unit B,
Westerville, Ohio.
{¶3} Appellant’s purchase was secured by a mortgage through Appellee
Commercial Savings Bank. Appellant maintains that one of the incentives that originally
persuaded him to enter the real estate purchase contract was that a portion of the real
estate taxes would be abated or exempted. Appellant thereafter owned the property
from 2005 until 2013.
{¶4} On June 23, 2011, appellant filed a civil complaint in the Delaware County
Court of Common Pleas against the City of Westerville, Office Park LLC (both as an
Ohio and a Delaware limited liability company), Appellee Commercial Savings Bank,
and others, alleging deprivation of his constitutional rights under 42 U.S.C. 1983, fraud,
breach of contract, promissory estoppel, tortious interference with contract, and
misrepresentation. According to appellant, this followed events in 2010 wherein the Delaware County, Case No. 13 CAE 02 0011 3
City of Westerville represented to the Delaware County Auditor that appellant was
delinquent on “payment in lieu of tax” (PILOT) fee payments, that his tax exemption
was revoked, and that the unpaid PILOT fees were to be assessed as delinquent real
estate taxes against the property.
{¶5} On July 18, 2011, appellant filed an amended complaint against the City of
Westerville, Office Park LLC (both as an Ohio and a Delaware limited liability
company), Appellee Commercial Savings Bank, and others, alleging deprivation of his
constitutional rights under 42 U.S.C. 1983, fraud, breach of contract, promissory
estoppel, tortious interference with contract, misrepresentation, and abuse of process.
{¶6} Neither the Delaware County Treasurer nor the Delaware County Auditor
were named as parties in the original complaint or amended complaint. On December
15, 2011, Appellee Delaware County Treasurer was granted leave to intervene in the
case.
{¶7} On March 14, 2012, appellant filed a second amended complaint against
the City of Westerville, Office Park LLC (both as an Ohio and a Delaware limited
liability company), Appellee Commercial Savings Bank, and Attorney Charles L.
Bartholomew, alleging deprivation of his constitutional rights (citing Article I of the Ohio
Constitution), negligence, fraud, breach of contract, promissory estoppel, tortious
interference with contract, misrepresentation, abuse of process, civil conspiracy, and
mutual mistake.
{¶8} Following trial court rulings in regard to the various responsive pleadings
and counterclaims, which we need not recite herein, the following claims remained as
of April 18, 2012: Delaware County, Case No. 13 CAE 02 0011 4
{¶9} (1) Appellant’s claims against Appellee Commercial Savings Bank under
the second amended complaint; (2) Appellee Commercial Savings Bank’s counterclaim
against appellant filed November 22, 2011, based on the note and mortgage; and (3)
Appellee Delaware County Treasurer’s counterclaim against appellant filed December
20, 2011, based on alleged taxes, interest, and penalties.
{¶10} On August 6, 2012, Appellee Commercial Savings Bank filed a motion for
summary judgment. On September 6, 2012, appellant dismissed all of his claims
against Appellee Commercial Savings Bank; however, the bank’s counterclaim
remained. Via a judgment entry filed January 23, 2013, the trial court granted summary
judgment in favor of Appellee Commercial Savings Bank on said counterclaim. This left
only Appellee Delaware County Treasurer’s counterclaim against appellant, which the
court had previously scheduled for trial.
{¶11} On January 23, 2013, following a bench trial, the trial court issued a
judgment entry in favor of Appellee Delaware County Treasurer on his counterclaim,
granting foreclosure on a lien for real estate taxes and the current and delinquent real
estate taxes due in regard to the property at issue.
{¶12} Appellant filed a notice of appeal on February 21, 2013. He herein raises
the following three Assignments of Error:
{¶13} “I. WHERE THE CITY OF WESTERVILLE, OHIO ORDERED COOPER
TO GIVE THE CITY A PAYMENT IN LIEU OF TAX (PILOT FEE) PURSUANT TO A
R.C. 3735.671 COMMUNITY REINVESTMENT AREA AGREEMENT TO WHICH
COOPER WAS NOT A PARTY; THEN FAILED TO PROVIDE COOPER WITH
NOTICE REQUIRED BY R.C. 3735.68 THAT THE TAX EXEMPTION WAS Delaware County, Case No. 13 CAE 02 0011 5
REVOKED; THEN FAILED TO GIVE COOPER NOTICE OF HIS R.C. 3735.70
APPEAL RIGHTS; THEN CERTIFIED TO THE DELAWARE COUNTY AUDITOR
THAT THE UNPAID PILOT FEES WERE NOW A DELINQUENT TAX TO BE
ASSESSED UPON COOPER'S REAL ESTATE IMPROVEMENTS, IT WAS A DENIAL
OF DUE PROCESS AND ERROR FOR THE COURT OF COMMON PLEAS FOR
DELAWARE COUNTY TO ENTER A JUDGMENT IN FAVOR OF THE COUNTY
TREASURER AGAINST COOPER FOR THAT PORTION OF THE ALLEGED UNPAID
TAXES THAT BEGAN AS A PILOT FEE PURSUANT TO A R.C. 3735.671
COMMUNITY REINVESTMENT AREA AGREEMENT TO WHICH COOPER WAS
NOT A PARTY.
{¶14} “II. WHERE THE PROPERTY OWNER CHALLENGES THE VALIDITY
OF AN ALLEGED REAL ESTATE TAX OBLIGATION THAT PURPORTEDLY AROSE
FROM A R.C. 3735.671 COMMUNITY REINVESTMENT AREA AGREEMENT TO
WHICH THE PROPERTY OWNER WAS NOT A PARTY, THE TRIAL COURT ERRED
AND DENIED THE PROPERTY OWNER DUE PROCESS WHEN THE COURT SUA
SPONTE JOINED THE COUNTY TREASURER INSTEAD OF THE COUNTY
AUDITOR AS A PARTY IN THE CASE.
{¶15} “III. WHERE A NOTE IS AMBIGUOUS BECAUSE IT CONTAINS TWO
DIFFERENT LOAN AMOUNTS AND THE PARTIES WERE MUTUALLY MISTAKEN
AS TO THE AMOUNT OF THE LOAN TRANSACTION, THE TRIAL COURT ERRED
IN GRANTING DEFENDANT BANK'S MOTION FOR SUMMARY JUDGMENT
BECAUSE THERE EXISTS A GENUINE ISSUE AS TO A MATERIAL FACT AND THE
BANK IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.” Delaware County, Case No. 13 CAE 02 0011 6
I., II., III.
{¶16} In his Assignments of Error, appellant argues the trial court committed
reversible error in allowing the intervention of and awarding judgment in favor of the
Delaware County Treasurer, and in granting summary judgment in favor of Commercial
Savings Bank on its counterclaim.
{¶17} As an initial matter, we note appellees assert in their briefs that on April 1,
2013, before appellant filed his brief in this matter, appellant sold the property at issue
(prior to the scheduled date for a sheriff sale under the foreclosure) and the real estate
taxes were paid in full as a result. Furthermore, the judgment in favor of the bank
against appellant was fully satisfied. Appellant did not seek a stay of the judgment and
did not post bond in regard to any potential stay. Appellant has not filed a reply brief in
this appeal challenging the veracity of the aforesaid recitation of these post-judgment
events. Generally, “a satisfaction of judgment renders an appeal from that judgment
moot.” Spencer v. Kiowa Developing Co., Inc. (Jan. 5, 2000), Summit App. Nos. 19524,
19532, quoting Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245. We have held, in
the related context of an order confirming a judicial sale, that “[w]ithout a stay order
and/or bond, the property can legally be transferred to the purchasers and the
proceeds can be used to satisfy the debts against the property.” Meadow Wind Health
Care Center, Inc. v. McInnis, 5th Dist. Stark No. 2002CA00319, 2003-Ohio-979, ¶ 7. Delaware County, Case No. 13 CAE 02 0011 7
{¶18} Upon review, we find the issues raised in Appellant’s First, Second, and
Third Assignments of Error are now moot, and we are thus compelled to dismiss the
present appeal.
{¶19} For the reasons stated in the foregoing, the appeal of the decision of the
Court of Common Pleas, Delaware County, Ohio, is dismissed.
By: Wise, J.
Hoffman, P. J., and
Delaney, J., concur.
___________________________________ HON. JOHN W. WISE
___________________________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. PATRICIA A. DELANEY
JWW/d 0911 Delaware County, Case No. 13 CAE 02 0011 8
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
TIM H. COOPER : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : CITY OF WESTERVILLE, OHIO, et al. : : Defendants-Appellees : Case No. 13 CAE 02 0011
For the reasons stated in our accompanying Memorandum-Opinion, the appeal
of the judgment of the Court of Common Pleas of Delaware County, Ohio, is dismissed.
Costs assessed to appellant.