Hamilton Cty. Treasurer v. Guinn

2023 Ohio 4812

• Court: Ohio Court of Appeals
• Decided: December 29, 2023
• Docket: C-230078
• Status: Published

Opinion

IN THE COURT OF APPEALS [Cite as Hamilton Cty. Treasurer v. Guinn, 2023-Ohio-4812.] FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

TREASURER, HAMILTON COUNTY, : APPEAL NO. C-230078 OHIO, TRIAL NO. A-2200228 : Plaintiff-Appellee, : O P I N I O N. vs. : JOSEPH GUINN, : Defendant-Appellant, : and : JANE DOE, unknown spouse of Joseph Guinn, :

Defendant. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 29, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and James S. Sayre, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Joseph Guinn, pro se. OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge. {¶1} Defendant-appellant Joseph R. Guinn appeals the decision of the

Hamilton County Court of Common Pleas granting summary judgment in favor of

plaintiff-appellee Treasurer, Hamilton County, Ohio, (“the Treasurer”) on her

complaint for foreclosure on Guinn’s property due to unpaid taxes and ordering the

sale of the property. We find no merit in Guinn’s assignment of error, and we affirm

the trial court’s judgment.

{¶2} The record shows that on January 21, 2023, the Treasurer filed a

complaint naming as defendants Guinn and Jane Doe, Guinn’s unknown spouse, who

was served by publication and never entered an appearance. The complaint alleged

that the defendants had failed to pay real estate taxes on a parcel of property owned

by Guinn on 2596 Cornwall Drive, Cincinnati, Ohio. It asked the court to find that the

Treasurer had a valid first lien on the property in the sum of $15,733.59, plus accrued

taxes, penalties, interest and costs. It further asked the court to order a foreclosure

and sale of the property.

{¶3} In response, Guinn filed three motions to dismiss. In the first motion,

he argued that the trial court lacked subject-matter jurisdiction. In the second, he

argued that the complaint failed to state a claim upon which relief could be granted

under Civ.R. 12(B)(6). In the third, he argued that he had not been properly served.

A magistrate denied all of these motions. Guinn did not object to the magistrate’s

decision.

{¶4} He subsequently filed a “Motion to Strike All Proceedings,” in which he

made sovereign-citizen type arguments. Relying on the Federal Rules of Civil

Procedure, he contended that he had never consented to the referral of the case to a

magistrate. The trial court denied that motion.

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{¶5} On October 17, 2022, the Treasurer filed a motion for summary

judgment along with the affidavit of Cheryl Gabbard, the Supervisor of the Delinquent

Real Estate Department for the Hamilton County Auditor. The affidavit stated that

the total amount of delinquent taxes owed was $17,404.74. In response, Guinn filed a

motion to dismiss and a motion to strike Gabbard’s affidavit, in which he argued that

the Treasurer, Gabbard, and others had perpetrated a fraud.

{¶6} Subsequently, a magistrate found that (1) the Treasurer had a valid first

and best lien on the premises; (2) taxes and assessments on the premises were

delinquent and in default; and (3) the Treasurer was entitled to a judgment in the

amount of $17,404.74 and to foreclose on the property. Guinn filed objections to the

magistrate’s decision. The trial court overruled his objections, adopted the

magistrate’s decision, and entered judgment against Guinn in the amount of

$17,404.74. This appeal followed.

{¶7} In his sole assignment of error, Guinn contends that the trial court erred

in failing to grant his motions to dismiss and to strike the complaint. He argues that

the trial court failed to follow the law, failed to allow him to present evidence, and

violated his rights under Ohio statutes, the United States Constitution, and federal

statutes. This assignment of error is not well taken.

Motions to Dismiss

{¶8} As to his motions to dismiss, Guinn failed to object to the magistrate’s

decisions denying those motions. Civ.R. 53(D)(3)(b)(ii) provides, “An objection to a

magistrate’s decision shall be specific and state with particularity all grounds for

objections.” Additionally, Civ.R. 53(D)(3)(b)(iv) provides, “Except for a claim of plain

error, a party shall not assign as error on appeal the court's adoption of any factual

finding or legal conclusion * * * unless that party had objected to that finding or

3 OHIO FIRST DISTRICT COURT OF APPEALS

conclusion as required by Civ.R. 53(D)(3)(b).” Stride Studios, Inc. v. Alsfelder, 1st

Dist. Hamilton No. C-220395, 2023-Ohio-1502, ¶ 26.

{¶9} Because Guinn failed to object to the magistrate’s decision, he has

forfeited all but a claim of plain error on appeal. Id. at ¶ 29; Neu v. Neu, 1st Dist.

Hamilton No. C-140170, 2015-Ohio-1466, ¶ 22. “In appeals of civil cases, the plain

error doctrine is not favored and may be only applied in the extremely rare case

involving exceptional circumstances where error * * * seriously affects the basic

fairness, integrity, or public reputation of the judicial process * * *.” Goldfuss v.

Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. Plain error does not

exist unless it can be said that but for the error, the outcome of the proceedings would

clearly have been otherwise. In re E.H., 2023-Ohio-470, 208 N.E.3d 1059, ¶ 11 (1st

Dist.).

{¶10} In his first motion to dismiss, Guinn contended that the trial court

lacked subject-matter jurisdiction. We review a challenge to the court’s jurisdiction

de novo. Cirino v. Ohio Bur. of Workers’ Comp., 153 Ohio St.3d 333, 2018-Ohio-2665,

106 N.E.3d 41, ¶ 17; Harmon v. Cincinnati, 2023-Ohio-788, 210 N.E.3d 1011, ¶ 15 (1st

Dist.). R.C. 2305.01 provides that courts of common pleas have “original jurisdiction

in all civil cases in which the sum or matter in dispute exceeds the exclusive original

jurisdiction of county courts.” The Ohio Supreme Court has held that the court of

common pleas is a court of general jurisdiction, with subject-matter jurisdiction that

extends to “all matters at law and in equity that are not denied to it.” Bank of Am.,

N.A. v Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 20, quoting

Saxton v. Seiberling, 48 Ohio St. 554, 558-589, 29 N.E. 179 (1891). It has also long

held that actions in foreclosures are within the jurisdiction of a court of common pleas.

Id. Therefore, the trial court properly exercised jurisdiction over the action, and the

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trial court did not err in denying Guinn’s motion to dismiss for lack of subject-matter

jurisdiction.

{¶11} In his second motion to dismiss, Guinn argued that the complaint failed

to state a claim upon which relief could be granted. A Civ.R. 12(B)(6) motion to

dismiss tests the sufficiency of the complaint. In ruling on such a motion, the trial

court must take all of the allegations in the complaint as true and draw all reasonable

inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio

St.3d 190, 192, 532 N.E.2d 753 (1988); Evans v. Thrasher, 1st Dist. Hamilton No. C-

120783, 2013-Ohio-4776, ¶ 13. It may dismiss a complaint on a Civ.R. 12(B)(6) motion

only when the plaintiff can prove no set of facts that would entitle the plaintiff to relief.

O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753

(1975), syllabus; Evans at ¶ 13.

{¶12} Taking the allegations of the complaint as true, it alleges sufficient facts

to state a claim upon which relief could be granted. The complaint alleges that Guinn

is the owner of the property and describes the property in detail. It further alleges the

property taxes are delinquent and Guinn is in default for failure to pay those taxes and

sets forth the amount of the delinquency. Consequently, the allegations in the

complaint are sufficient to set forth a cause of action in foreclosure to survive a Civ.R.

12(B)(6) motion to dismiss. Therefore, the trial court did not err in denying Guinn’s

motion to dismiss on that basis.

{¶13} In his third motion to dismiss, Guinn contended that “the defendant is

a corporation organized under the laws of Ohio and was not and is not subject to

service of process” and that he was never properly served. To the extent that his

motion relies on “sovereign citizen” type arguments, it is wholly frivolous. See Capital

One (U.S.A.), N.A. v. McCladdie, 8th Dist. Cuyahoga No. 111289, 2022-Ohio-4082, ¶

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15; Sullivan v. Monument Homes, Inc., 10th Dist. Franklin No. 19AP-814, 2020-Ohio-

2846, ¶ 25; State v. Thomas, 1st Dist. Hamilton No. C-170400, 2019-Ohio-132, ¶

6; State v. Few, 2d Dist. Montgomery No. 25969, 2015-Ohio-2292, ¶ 5-6. “Regardless

of an individual’s claimed status of descent, be it as a ‘sovereign citizen,’ ‘a secured

party creditor,’ or a ‘flesh and blood human being,’ that person is not beyond the

jurisdiction of the courts.” McCladdie at ¶ 15, quoting United States v. Benabe, 654

F.3d 753, 767 (7th Cir.2011).

{¶14} The complaint was served by certified mail on January 24, 2022. On

February 17, 2022, Guinn filed his first motion to dismiss arguing that the trial court

lacked subject-matter jurisdiction. On February 18, the certified mail was returned

stating, “Return to sender no one lives here by that name.” On March 16, 2022, he

filed his Civ.R. 12(B)(6) motion to dismiss. On March 22 2022, he filed his motion to

dismiss for lack of service.

{¶15} A trial court cannot render a judgment against a defendant over whom

it has no personal jurisdiction. Midland Funding, LLC v. Cherrier, 8th Dist. Cuyahoga

No. 108595, 2020-Ohio-3280, ¶ 9. A court does not acquire personal jurisdiction over

a defendant “unless and until the defendant is properly served with the complaint or

the defendant makes an appearance in the case.” Id. at ¶ 10, citing State ex rel. Ballard

v. O’Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990), syllabus; Aultman v. Parker,

1st Dist. Hamilton No. C-170683, 2018-Ohio-4583, ¶ 8. Here, Guinn has made an

appearance.

{¶16} Further, Civ.R. 12(G) states that “[a] party who makes a motion under

this rule must join with it other motions herein provided for and then available to him.

If a party makes a motion under this rule and does not include therein all defenses and

objections then available to him which this rule permits to be raised by motion, he

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shall not thereafter assert by motion or responsive pleading, any of the defenses or

objections so omitted, except as provided in subdivision (H) of this rule.”

{¶17} Civ.R. 12(H)(1) provides that

A defense of lack of jurisdiction over the person, improper venue,

insufficiency of process, or insufficiency of service of process is waived

(a) if omitted from a motion in the circumstances described in (G), or

(b) is neither made by motion under this rule nor included in a

responsive pleading or an amendment thereof permitted by Civ.R. 15(A)

to be made as a matter of course.

{¶18} Thus, a defendant “must raise a challenge to the trial court’s personal

jurisdiction over him at the earliest opportunity; otherwise, he risks a finding that he

waived any defects in service, allowing a court to enter a valid personal judgment

against him.” Pioneer Automotive, LLC v. Village Gate, LLC, 1st Dist. Hamilton No.

C-210205, 2022-Ohio-1247, ¶ 9, quoting Teeters v. Jeffries, 12th Dist. Clermont No.

CA2021-02-007, 2021-Ohio-2985, ¶ 18. Because Guinn did not raise the issue of lack

of service at his earliest opportunity, he has waived any defects in service.

{¶19} Finally, the Treasurer initiated the foreclosure action under R.C.

5721.18, which is an in rem proceeding. Thus, it operates on the land itself and not on

the title of one whose name the property is listed for taxation. Hunter v. Grier, 173

Ohio St. 158, 161-162, 180 N.E.2d 603 (1962); Tax Ease Ohio, LLC v. Hillman, 5th

Dist. Delaware No. 20-CAE-06-0024, 2021-Ohio-459, ¶ 21; Loraine Cty. Treasurer v.

Schultz, 9th Dist. Lorain No. 08CA009487, 2009-Ohio-1828, ¶ 10. Therefore, Guinn’s

contention that the court lacked personal jurisdiction over him is misplaced, as the

jurisdiction extends over the property itself.

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{¶20} Under the circumstances we cannot hold that the trial court erred in

overruling Guinn’s motions to dismiss. Certainly, there was no error that rose to the

level of plain error.

Motions to Strike

{¶21} As to Guinn’s motions to strike, Civ.R. 12(F) provides that the court may

at any time strike “any pleading an insufficient claim or defense or any redundant,

immaterial, impertinent or scandalous matter.” A trial court’s decision to grant or

deny a motion to strike will not be reversed on appeal absent a showing of an abuse of

discretion. State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio-1509, 824

N.E.2d 1000, ¶ 10; Lachman v. Wietmarschen, 1st Dist. Hamilton No. C-020208,

2002-Ohio-6656, ¶ 9.

{¶22} Guinn filed numerous motions to strike various pleadings and motions.

The primary motion was a motion to strike all proceedings. The basis for that motion

was that he had not consented to the matter being overseen by a magistrate. He cited

various federal statutes and the Federal Rules of Civil Procedure, none of which were

binding on the trial court.

{¶23} Civ.R. 53(D)(1) allows a trial court to refer a case or a category of cases

to a magistrate by a specific or general order of reference. Bar 145 Franchising, LLC

v. College Town Kent, LLC, 11th Dist. Portage No. 2017-P-0102, 2018-Ohio-2459, ¶ 8;

Ramos v. Khawli, 181 Ohio App.3d 176, 2009-Ohio-798, 908 N.E.2d 495, ¶ 61 (7th

Dist.). “Nothing provides that an order of reference must be filed in each case in which

a magistrate proceeds.” Ramos at ¶ 62. Under the circumstances, we cannot hold that

the trial court’s decisions to overrule Guinn’s motions to strike all proceedings or any

other of his motions to strike were so arbitrary, unreasonable or unconscionable as to

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connote an abuse of discretion. See State ex rel. Mora at ¶ 10; Cincinnati v. Harrison,

1st Dist. Hamilton No. C-090702, 2010-Ohio-3430, ¶ 7.

Motion for Summary Judgment

{¶24} Finally, the trial court’s decision to grant the Treasurer’s motion for

summary judgment was proper. An appellate court reviews a trial court’s ruling on a

motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

105, 671 N.E.2d 241 (1996); Maas v. Maas, 2020-Ohio-5160, 161 N.E.3d 863, ¶ 13 (1st

Dist.). Summary judgment is appropriate if (1) no genuine issue of material fact exists

for trial, (2) the moving party is entitled to judgment as a matter of law, and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party, who is entitled to have the evidence construed most strongly in his

or her favor. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977); Maas at ¶ 13.

{¶25} The Treasurer brought this action under R.C. 5721.18. Under that

statute, the county prosecuting attorney may institute foreclosure proceedings, in the

name of the county treasurer, to foreclose a lien of the state for delinquent taxes.

Treasurer, Hamilton Cty., Ohio v. Scott, 1st Dist. Hamilton No. C-200438, 2022-Ohio-

1467, ¶ 10. R.C. 5721.18(B) provides that a complaint shall contain the following:

permanent parcel number of each parcel included in it, the full street

address of the parcel when available, a description of the parcel as set

forth in the certificate or master list, the name and address of the last

known owner of the parcel if they appear on the general tax list, the

name and address of each lienholder and other person with an interest

in the parcel identified in the title search relating to the parcel that is

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required by this division, and the amount of taxes, assessments,

charges, penalties, and interest due and unpaid with respect to the

parcel.

Goering v. Willow Creek Homeowner’s Assn., 1st Dist. Hamilton Nos. C-010214 and

C-210219, 2002-Ohio-3285, ¶ 10.

{¶26} The Treasurer’s complaint complied with the requirements of the

statute. Her motion for summary judgment was accompanied by Gabbard’s affidavit,

in which she testified that the true and accurate calculation of the delinquent taxes on

the property was $17,404.74. Consequently, the Treasurer met her initial burden of

informing the court of the basis for her motion and demonstrating the absence of any

genuine issue of material fact. See Dresher v. Burt, 75 Ohio St.3d 280, 282-293, 662

N.E.2d 264 (1996); Maas, 2020-Ohio-5160, 161 N.E.3d 863, at ¶ 14.

{¶27} Guinn failed to meet his reciprocal burden to set forth specific

evidentiary facts showing the existence of a genuine issue of material fact for trial. See

Dresher at 293; Maas at ¶ 14. Guinn’s response to the motion for summary judgment

contained unsupported allegations of fraud, citations to irrelevant federal cases and

statutes, and frivolous sovereign-citizen arguments. Therefore, the trial court did not

err in granting the Treasurer’s motion for summary judgment. We overrule Guinn’s

assignment of error and affirm the trial court’s judgment.

Judgment affirmed.

CROUSE, P.J., and KINSLEY, J., concur.

Please note: The court has recorded its own entry this date.