[Cite as In re Foreclosure of Liens for Delinquent Land Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens, 2020-Ohio-2814.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF FORCLOSURE JUDGES: OF LIENS FOR DELINQUENT LAND : Hon. William B. Hoffman, P.J. TAXES BY ACTION : Hon. W. Scott Gwin, J. IN REM, TREASURER OF : Hon. Patricia A. Delaney, J. GUERNSEY COUNTY, OHIO : : Appellant-Cross-Appellee : Case Nos. 19CA00045 : 19CA00046 -vs- : 19CA00051 : 19CA00052 : PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS : (RE: JACK BONNELL, ET AL) : OPINION
Appellee-Cross Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Guernsey County Court of Common Pleas, Case Nos. 17CV000519 and CV000521
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 5, 2020
APPEARANCES:
For Appellant-Cross Appellee For Appellee-Cross Appellant
JAMES R. SKELTON C. KEITH PLUMMER Assistant Prosecutor 139 West 8th Guernsey County Box 640 627 Wheeling Avenue Cambridge, OH 43725 Cambridge, OH 43725 [Cite as In re Foreclosure of Liens for Delinquent Land Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens, 2020-Ohio-2814.]
Gwin, J.,
{¶1} Appellant/cross-appellee James A. Caldwell, Treasurer of Guernsey
County, Ohio, and appellee/cross-appellant Jack Bonnell appeal the November 14, 2019
judgment entry of the Guernsey County Court of Common Pleas.
Facts & Procedural History
{¶2} On September 22, 2017, appellant/cross-appellee James A. Caldwell,
Treasurer of Guernsey County, Ohio (“Treasurer”) filed two separate foreclosure
complaints against appellee/cross-appellant Jack Bonnell (“Bonnell”) with regards to two
separate parcels of land, one located at 1159 Steubenville Avenue in Cambridge, Ohio,
and the other located at 601 Foster Avenue in Cambridge, Ohio. The Treasurer avers in
his complaint that delinquent land certificates were filed by the Auditor of Guernsey
County on each parcel and the State of Ohio has the first and best lien on each property
for delinquent and current real estate taxes and assessments. Bonnell filed an answer in
each case on October 19, 2017.
{¶3} After obtaining leave of court, the Treasurer filed an amended complaint in
each case on April 27, 2018. Bonnell filed answers to the amended complaints on June
13, 2018. Bonnell also filed a third-party complaint in each case against the City of
Cambridge (“Cambridge”). Bonnell’s third-party complaints aver a portion of the real
estate taxes alleged to be due to the Treasurer are a result of liens placed upon the
property by Cambridge and Cambridge failed to provide proper notice to Bonnell; thus,
Cambridge had no authority to place the liens on the properties. Bonnell sought a
declaratory judgment deleting the liens of Cambridge from the tax duplicate. Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 3
{¶4} The Treasurer filed a motion for summary judgment in each case on June
18, 2018. The Treasurer attached to the motions his own affidavit. Caldwell avers as
follows: he is the Treasurer of Guernsey County; he has been in direct supervision of all
payments received in respect to the taxes due on parcels XX-XXXXXXX.000 and 06-
0006409.000; the records show the taxes are delinquent for parcel number 06-
0005177.000 in the amount of $12,544.94 and parcel number XX-XXXXXXX.000 in the
amount of $5,144.53, and have been delinquent for more than one year; the parcels have
been listed on the delinquent tax parcel list; and demand for payment of said taxes has
been made.
{¶5} Bonnell filed memoranda in opposition to the motions for summary
judgment on July 3, 2018. Attached to each of the memorandums in opposition is the
affidavit of Bonnell. Bonnell avers as follows: he disputes the amount of taxes that are
claimed to be due and owing; a significant portion of the taxes alleged to be owed are the
result of liens placed upon his properties by Cambridge; the documents from Cambridge
do not indicate he was given notice regarding the liens placed on his properties for
mowing; he attempted to pay his taxes but was advised the taxes would first be applied
to the liens he believes were unlawfully placed upon his property without notice; he
believes there is a genuine issue of material fact regarding the amount of taxes due and
owing; and attorney fees should not be awarded because there is no statutory basis for
such an award.
{¶6} The trial court denied the Treasurer’s motion for summary judgment on
November 28, 2018. On December 21, 2018, the Treasurer filed a motion to compel,
asking the trial court to compel Bonnell to provide his tax returns. The Treasurer argued Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 4
since the properties in question are rental properties, Bonnell’s tax returns would show
whether Bonnell used the taxes at issue as deductions. Bonnell filed a memorandum
contra to the Treasurer’s motion, arguing his tax returns are not relevant to these cases.
{¶7} Cambridge filed an answer to Bonnell’s complaint on February 11, 2019.
On February 28, 2019, the Treasurer and Cambridge filed joint motions for summary
judgment, seeking a judgment against Bonnell as defendant and third-party plaintiff.
Attached to the motion for summary judgment in each case is the affidavit of Caldwell that
was filed previously with the Treasurer’s first motion for summary judgment. Bonnell filed
a memorandum contra to each of the motions for summary judgment on March 12, 2019.
Attached is the affidavit of Bonnell that was previously filed with his first memorandum in
opposition.
{¶8} The trial court issued a judgment entry on April 16, 2019 granting the
Treasurer’s motion for summary judgment, but denying Cambridge’s motion for summary
judgment.
{¶9} Bonnell filed a motion to redeem land on May 20, 2019, pursuant to R.C.
5721.25. The trial court granted Bonnell’s motion to redeem on June 3, 2019 and ordered
the Treasurer to notify the court the amount upon which Bonnell may redeem the property.
{¶10} On June 7, 2019, the Treasurer filed a notice of redemption amounts. The
redemption amount for the Steubenville Avenue property totaled $14,611.08, including:
$7,233.52 in real estate tax, $4,894.56 in penalty and interest, an $832 assessment,
$428.28 in penalty and interest, $900 in expenses, and $322.72 in courts costs. The
redemption amount for the Foster Avenue property totaled $6,864.93, including:
$2,732.84 in real estate tax, $1,862.51 in penalty and interest, a $560.14 assessment, an Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 5
additional $425.73 in penalty and interest, $900 in expenses, and $383.71 in court costs.
The Treasurer filed a memorandum in support of the redemption amounts in each case.
{¶11} The trial court issued a judgment entry on June 28, 2019, stating the issue
of the assessment and penalties of Cambridge would be determined at a trial in July of
2019. The trial court further stated that Bonnell objected to the imposition of separate
court costs in each case and objected to the assessments for title search and related fees
in the amount of $900 for each parcel. The trial court noted the Guernsey County Clerk
of Courts requested foreclosure actions involving multiple tracts of real estate be
separated by case number to make it easier for a title examiner and other court officials
to determine which tract is being sold and which costs, expenses, and liens are
associated with each parcel. The trial court ordered the redemption amount in each case
to include court costs. The trial court’s rationale for imposing court costs was the
significant delay of Bonnell’s payment of real estate taxes. The trial court additionally
ordered the redemption amount in each case to include $900 of fees and expenses, and
adopted by reference the rationale contained in the Treasurer’s memorandum in support
of the redemption amounts.
{¶12} After a status conference with the parties, the trial court issued an entry on
July 30, 2019, stating Cambridge would be withdrawing their assessments, interest, and
penalties and thus Bonnell’s claim against Cambridge would be dismissed. Cambridge
notified the trial court via letter that it sought to withdraw and dismiss their assessment,
interest, and penalty on both the Steubenville and Foster Avenue properties.
{¶13} The trial court held an evidentiary hearing on Bonnell’s motion to redeem
on November 1, 2019. Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 6
{¶14} The trial court issued a judgment entry on November 6, 2019, stating it took
testimony and exhibits on November 1, 2019 on Bonnell’s motion to redeem. The trial
court ordered the Treasurer to submit a breakdown separating the penalties and interest
owed each year in the two cases. The Treasurer filed the breakdown on November 12,
2019. On the Steubenville Avenue property, the Treasurer listed the penalty amount and
interest amount each year from 1997 to 2018, for a total of $1,108.88 in penalties and
$4,110.72 in interest. On the Foster Avenue property, the Treasurer listed the penalty
amount and interest amount each year from 2000 to 2018, for a total of $442.38 in
penalties and $1,569.33 in interest.
{¶15} On November 14, 2019, the trial court issued a final judgment entry on
Bonnell’s motion to redeem. The trial court issued the following findings of fact: Bonnell
is the owner of the real estate at 1159 Steubenville Avenue and 601 Foster Avenue, both
in Cambridge, Ohio; Bonnell was previously sued by the Guernsey County Treasurer for
the delinquent real estate taxes and assessments on some of the same property that is
the subject matter of these actions and the case was resolved in August of 2001; the
testimony of Bonnie Jones, Deputy Auditor for Guernsey County, was that Cambridge
placed assessments on the Steubenville property in 2001, 2002, 2014, and 2016; Jones
testified Cambridge placed assessments on the Foster Avenue property in 2002, 2004,
2010, and 2015; all payments to the County Treasurer must first be applied to outstanding
assessments before being applied to the taxes at issue; Cambridge was made a party to
this action via a third-party complaint filed by Bonnell; pursuant to an agreement reached
on the evening of trial, Cambridge released all of the lien assessments, including any
interest and penalty that may have accrued on the real estate; Cambridge did not produce Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 7
any notice to Bonnell with regard to mowing assessments; Bonnell testified he is ready,
willing, and able to pay the real estate taxes owed on the properties, but did not believe
he should be required to pay any assessments, interest, or penalties in the matter; Bonnell
was placed in a legal quandary by the assessments being placed on the property for
which he contests; for Bonnell to wait approximately 15 years before raising these issues
is not acceptable; the issue before the court is a motion to redeem pursuant to R.C.
5721.25, and the court may determine an appropriate amount to redeem the land in
question; and the Treasurer filed a breakdown of the penalty and interest for the real
estate in this matter.
{¶16} The trial court cited R.C. 5721.25 and concluded that with the removal of
the assessments by Cambridge, Bonnell should not be required to pay the penalties, but
should pay interest in light of the significant delay in bringing the matter to the trial court’s
attention of approximately fifteen years. As to the Steubenville Avenue property, the trial
court found the redemption amount to be as follows: $7,233.52 in real estate taxes,
$4,110.72 in interest, $90.00 for the Muskingum Watershed assessment, and $55.41 in
interest on the Muskingum Watershed penalty and interest, for a total of $11,489.65. With
regards to the Foster Avenue property, the trial court found the redemption amount to be:
$2,732.84 in real estate taxes, $1,569.33 in interest, $90.00 for the Muskingum
Watershed assessment, and $55.41 on the Muskingum Watershed penalty and interest,
for a total of $4,447.58. In both cases, the trial court ordered that the penalties be
removed from the above tracts of real estate if Bonnell redeems the property within
twenty-one (21) days from the date of the judgment entry, and the failure of Bonnell to
redeem the property within twenty-one (21) days shall result in the penalty remaining. Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 8
Additionally, the trial court ordered Bonnell to pay the court costs in each case, together
with $900.00 of fees and expenses paid to the Guernsey County Treasurer/Guernsey
County Prosecutor in each case, as previously ordered by the court.
{¶17} Bonnell appeals the November 14, 2019 judgment entry of the Guernsey
County Court of Common Pleas with respect to each parcel of land and assigns the
following as error in each case:
{¶18} “THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING
PLAINTIFF-APPELLANT TO PAY COURT COSTS AND ATTORNEY’S FEES AND
COSTS FOR THE GUERNSEY COUNTY TREASURER AND GUERNSEY COUNTY
PROSECUTOR IN THE TAX FORECLOSURE MATTER.
{¶19} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING
PLAINTIFF-APPELLANT TO PAY INTEREST ON THE DELINQUENT TAXES
BECAUSE THE CITY OF CAMBRIDGE FAILED TO PROVIDE NOTICE OF THE LIENS
PLACED ON PLAINTIFF-APPELLANT’S PARCELS THAT IS THE SUBJECT OF THIS
ACTION.”
{¶20} The Treasurer also appeals the November 14, 2019 judgment entry of the
Guernsey County Court of Common Pleas with respect to each parcel of land and assigns
the following as error in each case:
{¶21} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT AWARDED
TAXES, PENALTIES, INTEREST, AND COSTS AND THEN REVISED ITS ORDER,
THEREFORE, WAIVING ALL PENALTIES AND FEES. Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 9
{¶22} “II. THE TRIAL COURT ERRED BY REVERSING ITS OWN ENTRY
DATED JUNE 28, 2019 WHERE IT ORDERED APPELLEE TO PAY PENALTIES AFTER
THE EVIDENTIARY HEARING IN ITS ENTRY DATED NOVEMBER 12, 2019.
{¶23} “III. THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION FOR
PROTECTIVE ORDER DENYING ACCESS TO APPELLEE’S TAX RETURNS.”
Bonnell’s Appeals
I.
{¶24} In Bonnell’s first assignment of error, he argues the trial court abused its
discretion by ordering him to pay court costs and fees and costs for the Guernsey County
Treasurer and Guernsey County Prosecutor.
{¶25} With respect to court costs, Bonnell contends the trial court erred by
ordering him to pay court costs separately in each case because it was the Treasurer’s
decision to file the cases separately rather than together, which doubled his court costs.
{¶26} R.C. 5721.18(A) provides that in foreclosure proceedings on a lien of the
state, “the treasurer may join in one action any number of lots or lands, but the decree
shall be rendered separately, and any proceedings may be severed, in the discretion of
the court or board of revision, for the purpose of trial or appeal, and the court * * * shall
make such order for the payment of costs as is considered proper.” Thus, the assessment
of costs is within the trial court’s discretion and will not be reversed absent an abuse of
discretion. Harris v. Burgess, 5th Dist. Perry No. 10-CA-13, 2011-Ohio-1506. A trial court
abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 10
{¶27} We find the trial court’s assessment of court costs in each case was not
unreasonable, arbitrary, or unconscionable. In its assessment of court costs in each of
the two cases, the trial court stated the Guernsey County Clerk of Courts requested
foreclosure actions involving multiple tracts of real estate be separated by case number
to make it easier for a title examiner and other court officials to determine which tract is
being sold and which costs, expenses, and liens are associated with each parcel. See In
the Matter of Foreclosure of Liens for Delinquent Land Taxes by Action in Rem, Treasurer
of Guernsey County, Ohio v. Parcels of Land Encumbered with Delinquent Tax Liens, 5th
Dist. Guernsey No. 19CA000019, 2019-Ohio-4642; see also Cornett v. Ray, 12th Dist.
Warren No. CA85-12-091, 1986 WL 9709 (stating “in the redemption section of this
chapter, R.C. 5721.25, there is a clear statement that court costs are a proper first
consideration where a redemption occurs during tax foreclosure proceedings”).
{¶28} Bonnell also argues the trial court abused its discretion by ordering him to
pay attorney fees and expenses to the Treasurer and Prosecutor. Bonnell cites an
Attorney General Opinion from 2014 and argues it is improper for the prosecutor and
treasurer to charge legal fees because it is the job of the county treasurer and the
treasurer’s counsel to collect delinquent real estate taxes. In the document cited by
Bonnell, the Ohio Attorney General opines that a prosecuting attorney may not charge a
fee to recover legal costs incurred in delinquent real estate tax foreclosure proceedings
initiated pursuant to R.C. 5721.14 or R.C. 5721.18. 2014 Ohio Atty.Gen.Ops. No. 2014-
020.
{¶29} We do not read the opinion by the Attorney General to automatically require
that the trial court deny the Treasurer’s $900 fee and expense request. We first note that Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 11
the opinion by the Ohio Attorney General specifically states, “this opinion does not discuss
foreclosure proceedings under R.C. 323.25 or R.C. 323.65-7.” Though the complaint in
this case does not specifically state under which section the foreclosure is brought,
pursuant to the language contained in the Ohio Revised Code, the Treasurer can
commence tax foreclosure actions in accordance with either or both R.C. 323.25 and R.C.
5721.18. Under either R.C. 5721.25 or R.C. 323.25, Bonnell is entitled to file a motion to
redeem in order to have the trial court determine the amount required for redemption of
the property.
{¶30} Additionally, the decision the trial court rendered in this case was upon
Bonnell’s motion to redeem. R.C. 5721.25 and R.C. 323.25 both state that the “costs
incurred” may be included in the redemption amount. The opinion by the attorney general
states, “in proceedings * * * pursuant to R.C. 5721.25, the court calculates the amount of
costs that are to be recouped either from the person redeeming the property” and
“[b]ecause R.C. Chapter 5721 does not indicate what the term “costs” includes, it is left
to the discretion of the trial court.” Id. As explained by the attorney general, what
constitutes “costs” is up to the court to decide, and has previously included advertising
costs and costs for publishing notice. Id. The opinion also states, “certain statutes are
also relevant to what might be considered a cost in a tax lien foreclosure proceeding
under R.C. Chapter 5721” and include the cost of an abstract or certificate of title to the
property (R.C. 5721.10) and the legal fees and costs for making and executing the deed
(R.C. 311.17). Id.
{¶31} Bonnell also argues that the trial court abused its discretion in awarding the
Treasurer $900 of fees, expenses, and costs in each case, as the trial court did not Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 12
provide a description or breakdown of the $900. We disagree. In its judgment entry
overruling Bonnell’s objection to the $900 being included in the redemption amount, the
trial court stated it adopted by reference the rationale as contained in the Treasurer’s
memorandum in support of the redemption amounts. In the memorandum in support, the
Treasurer states $300 was for private attorney William Bennett to conduct a title search,
$300 was for expenses of the prosecutor’s office, and $300 was for expenses of the
treasurer’s office. We do not find the inclusion of these costs and expenses in the
redemption amount to be arbitrary, unreasonable, or unconscionable.
{¶32} This Court cannot discern whether the parties or the trial court further
discussed the $900 costs, fees, or expenses at the November evidentiary hearing,
because neither party filed a transcript of the evidentiary hearing. It is well settled that
when portions of the transcript necessary to resolve issues are not part of the record on
appeal, we must presume the regularity of the proceedings and affirm. Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).
{¶33} Bonnell’s first assignment of error is overruled.
II.
{¶34} In Bonnell’s second assignment of error, he argues the trial court abused
its discretion by ordering him to pay interest on the delinquent taxes because Cambridge
failed to provide notice of the liens placed on Bonnell’s parcels. Bonnell contends since
Cambridge released the liens and associated penalties, the interest should also be
released and not included in the redemption amount because interest only accrued
because of the improper liens on the properties.
{¶35} R.C. 5721.25 provides as follows: Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 13
After a foreclosure proceeding has been instituted under Chapter
323 or this chapter of the Revised Code with respect to delinquent land, but
before the filing of an entry of confirmation of sale pursuant to the
proceeding * * * any person entitled to redeem the land may do so by
tendering to the county treasurer an amount sufficient, as determined by the
court, to pay the taxes, assessments, penalties, interest, and charges then
due and unpaid, and the costs incurred in any proceeding instituted against
such land under Chapter 323 or this chapter of the Revised Code * * *.
{¶36} Similarly, R.C. 323.25 provides:
After the civil action has been instituted, but before the expiration of
the applicable redemption period, any person entitled to redeem the land
may do so by tendering to the county treasurer an amount sufficient, as
determined by the court or board of revision, to pay the taxes, assessments,
penalties, interest, and charges then due and unpaid, and the costs incurred
in the civil action * * *
{¶37} Thus, pursuant to both Chapter 323 and Chapter 5721 of the Revised Code,
the trial court has the discretion to determine the amount that is sufficient for redemption
of the property. A trial court abuses its discretion when its decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983).
{¶38} Upon review of the trial court’s judgment entry, we find the trial court did not
abuse its discretion. The trial court cited to R.C. 5721.25 and found that while Bonnell
was placed in a legal quandary when he sought to contest the assessments placed on Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 14
the properties, it was not reasonable or acceptable for Bonnell to wait approximately
fifteen years to bring the issue to the trial court’s attention and fail to pay his taxes during
that period of time. The trial court ordered the Treasurer to provide the specific amount
of interest of each property, separated from the penalty amount in each case. The trial
court then utilized the interest amount provided by the Treasurer in its redemption
amount. We find the trial court’s rationale for including the interest in the redemption
amount is not arbitrary, unreasonable, or unconscionable.
{¶39} Bonnell cites to his testimony at the evidentiary hearing that he offered to
pay his taxes on several occasions, but disputed the Cambridge liens, for the proposition
that the trial court abused its discretion in ordering him to pay interest on the delinquent
taxes. However, Bonnell did not file a transcript of the evidentiary hearing. It is well
settled that when portions of the transcript necessary to resolve issues are not part of the
record on appeal, we must presume the regularity of the proceedings and affirm. Knapp
v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). Without such a
transcript, we must presume the trial court was correct in its findings.
{¶40} Bonnell’s second assignment of error is overruled.
Treasurer’s Assignments of Error
{¶41} In the Treasurer’s first assignment of error, the Treasurer contends the trial
court abused its discretion when it did not include penalties in the redemption amount, as
the trial court did not explain its reasoning, or have the statutory authority to do so.
{¶42} As discussed above, the issue in this case is Bonnell’s motion to redeem
and, pursuant to R.C. 5721.25 and R.C. 323.25, the trial court has the authority and Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 15
discretion to determine the amount that is sufficient for redemption of each property. The
trial court explained its reasoning for not including the requested penalties by the
Treasurer in the redemption amount, but including the requested interest by the Treasurer
in the redemption amount in its judgment entry, stating that while Bonnell was placed in
a legal quandary by the assessments being placed on the property that he contested, for
Bonnell to wait fifteen years to raise these issues and pay his taxes is not acceptable.
We find the rationale and explanation by the trial court as to why it did not include the
penalties in the redemption amount in each case is not arbitrary, unconscionable, or
unreasonable.
{¶43} The Treasurer states that because the certificate or master list filed by the
auditor with the prosecuting attorney is prima facie evidence of the amount and validity of
the taxes, assessments, charges, penalties, and interest appearing due and unpaid on
each parcel pursuant to R.C. 5721.18(B)(3), the trial court abused its discretion in failing
to include the penalties in the redemption amounts. While the statute does state the tax
certificate or master list is prima facie evidence of the amount and validity of the amount
due and unpaid on the parcel, Bonnell may rebut the prima facie evidence of the amount
due and unpaid. See Turner v. Progressive Ins. Co., 5th Dist. Holmes No. 2007 CA 015,
2008-Ohio-4988. Ultimately, it is left to the discretion of the trial court to determine the
redemption amount, taking into consideration the prima facie evidence and rebuttal
evidence. R.C. 5721.25. Though the Treasurer cites portions of the testimony at the
evidentiary hearing, the Treasurer did not file a transcript of the evidentiary hearing. Thus,
we must presume the regularity of the proceedings and affirm. Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 16
{¶44} The Treasurer also argues the trial court does not have the authority to
waive the fees the Treasurer is entitled to. However, upon our review of the judgment
entry by the trial court, the only amount not included in the redemption amount that was
requested by the Treasurer was the penalty amount. The trial court included in the
redemption amount in each case the fees and expenses requested by the Treasurer
($900), along with the back taxes, interest, watershed assessment, and watershed
penalties.
{¶45} The Treasurer’s first assignment of error is overruled.
{¶46} In his second assignment of error, the Treasurer argues the trial court erred
by reversing its June 28th judgment entry with its subsequent November entry
determining the redemption amount. We disagree.
{¶47} In the June entry, the trial court specifically ordered the redemption amount
to include court costs and $900 in fees and expenses for title searches and related fees,
as requested by the Treasurer in his memorandum in support of the redemption amounts
and objected to by Bonnell. However, in the June entry, the trial court did not determine
a final redemption amount for either parcel and did not determine the amount of interest
and/or penalties to be included in the final redemption amount for each parcel. Thus, the
trial court did not reverse its June entry in its November entry. The Treasurer’s second
assignment of error is overruled.
III.
{¶48} In his third assignment of error, the Treasurer contends the trial court erred
when it granted the motion for protective order and denied his Treasurer’s motion to Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 17
compel Bonnell to produce his tax returns. The Treasurer argues Bonnell’s tax returns
were material to this case because, since the properties at issue are rental properties,
Bonnell’s tax returns would show how much he claimed as a tax write-off, and thus would
prove the rightful amount owed to the Treasurer.
{¶49} In the regulation of discovery, the trial court has discretionary power, and
its decision to grant or deny a protective order under Civil Rule 26(C) will not be disturbed
absent an abuse of discretion. Northeast Professional Home Care, Inc. v. Advantage
Home Health Servs., Inc., 5th Dist. Stark No. 2009-CA-00180, 2010-Ohio-1640. A trial
court abuses its discretion when its decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶50} We find the trial court’s granting of the motion for protective order was not
unreasonable, arbitrary, or unconscionable. As detailed above, when deciding a motion
to redeem, the trial court has the discretion to determine the amount Bonnell must pay to
redeem each property. The Treasurer offered a memorandum in support of the
redemption amount and the parties presented evidence and testimony at the evidentiary
hearing on the motion to redeem. We find the trial court did not abuse its discretion in
determining the tax returns of Bonnell were not relevant or necessary to determine the
redemption amount. The Treasurer’s third assignment of error is overruled.
{¶51} Based on the foregoing, Bonnell’s assignments of error are overruled.
Further, the Treasurer’s assignments of error are overruled. Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 18
{¶52} The November 14, 2019, judgment entry of the Guernsey County Court of
Common Pleas is affirmed.
By Gwin, J., and
Delaney, J. concur;
Hoffman, P.J., concurs in part;
Dissents in part Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 19
Hoffman, P.J., concurring in part and dissenting in part
{¶53} I concur in the majority’s analysis and disposition of both of the assignments
of error of Appellee/Cross-Appellant Jack Bonnell, et al., in case numbers 19CA00051
and 19CA00052.
{¶54} I also concur in the majority’s analysis and disposition of assignments of
error two and three of Appellant/Cross-Appellee Treasurer of Guernsey County, in case
numbers 19CA00045 and 19CA00046. However, I respectfully dissent from the
majority’s analysis and disposition of the Guernsey County Treasurer’s first assignment
of error in those two appeals. My reasons follow.
{¶55} While R.C. 5721.18(A) gives the trial court discretion as to the amount of
costs to be assessed in the foreclosure proceeding initiated by a county treasurer, I
disagree with the majority’s conclusion that same discretion applies to the trial court’s
assessment of taxes, penalties, and interest due and unpaid pursuant to R.C. 5721.25 or
R.C. 323.25. While I believe both statutes provide the trial court discretion as to the
assessment of court costs as specified in R.C. 5721.18(A), the penalties and interest set
forth in the auditor’s certificate or master list is prima facie evidence of the amount due as
to those items.
{¶56} I agree with the majority pursuant to this Court’s decision in Progressive Ins.
Co., 5th Distr. Holmes No. 2007 CA 015, 2008-Ohio-4988, Bonnell may rebut the prima
facie amount due and owing. But Bonnell only contested the amount of the assessments
by the City of Cambridge and the amounts of costs assessed by the trial court. He did
not contest the amount of the taxes, penalties, and interest, but rather offered an excuse
for not paying taxes for over 15 years. While I agree with the trial court this placed Bonnell Guernsey County, Case Nos. 19CA00045, 19CA00046, 19CA00051, & 19 CA00052 20
in a “legal quandary”, it does not rebut the prima facie amount of the taxes, penalties and
interest due as reflected on the auditor’s certificate or mater list.
{¶57} Bonnell did exercise the appropriate action to escape his legal quandary by
filing his third party complaint against the City of Cambridge. His settlement of that
complaint resulted in the removal by the trial court of the City of Cambridge’s assessment
from the amount of tax due. It was Bonnell’s decision to settle his complaint. He could
have pursued a claim against the City of Cambridge for the resultant penalties and interest
assessed by the county treasurer, but he did not do so. Such failure does not provide a
legal justification for his failure to pay the taxes, penalties, and interest established by the
auditor. Proffering a reason for not paying is not the equivalent of challenging the amount
otherwise due.1
{¶58} I would sustain the Guernsey County Treasurer’s first assignment of error.
1 Because Bonnell did not challenge the amount of taxes, penalties, and interest due, but only his reason for not timely paying them, I find a transcript of the hearing is not necessary for resolution of the legal issue presented. [Cite as In re Foreclosure of Liens for Delinquent Land Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens, 2020-Ohio-2814.]