Koch v. Ohio Acres4U LLC

115 N.E.3d 748, 2018 Ohio 2763
CourtCourt of Appeals of Ohio, Seventh District, Harrison County
DecidedJune 25, 2018
DocketNo. 16 HA 0018
StatusPublished
Cited by3 cases

This text of 115 N.E.3d 748 (Koch v. Ohio Acres4U LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Seventh District, Harrison County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koch v. Ohio Acres4U LLC, 115 N.E.3d 748, 2018 Ohio 2763 (Ohio Super. Ct. 2018).

Opinion

BARTLETT, J.

{¶ 1} Defendant-Appellant, Ohio Acres4U, appeals the Harrison County Court of Common Pleas decision to grant summary judgment in favor of Plaintiffs-Appellees, John and Donna Koch. Defendant-Appellant also appeals the court's denial of its motion to strike certain exhibits. Plaintiff-Appellees originally initiated this action for declaratory judgment and to quiet title against Defendant-Appellants relative to a parcel of real property containing 2.739 acres. The trial court held that Appellees were current in their property tax payments and a tax sale is void where no taxes were owed on the subject property. Additionally, the trial court held that the county auditor's failure to fulfill statutory notice requirements voided the auditor's sale of the same property to Appellant.

{¶ 2} Appellant argues that genuine issues of material fact exist with respect to the trial court's determinations that: (1) taxes due on the 2.739 acre parcel were regularly paid by Appellees prior to the sale; (2) the auditor violated statutory notice requirements during the foreclosure proceedings against Liggett, et al.; (3) Appellees hold good title to the 2.739 acre parcel; and (4) Appellant's chain of title is defective. The Appellant further asserts that the trial court predicated summary judgment on evidence that was improperly authenticated and constituted both hearsay and improper expert testimony. We find that no genuine issues of material fact exist, therefore, the trial court did not abuse its discretion in considering evidence offered by Appellees. Additionally, there was clear and convincing evidence in the record to support the trial court's conclusion that the auditor's sale to Appellant was void and Appellees hold good title to the 2.739 acre parcel at issue. The judgment entries of the trial court are affirmed.

Facts and Procedural History

{¶ 3} In 1997, Appellees purchased 112.325 acres of real estate in Section 25, Township 12, Range 7 of Harrison County from Edna Patterson via warranty deed. The deed transferred all of the land south of the dividing line between Washington and Freeport Townships, including the 2.739 acre parcel at issue in this case. The deed identifies four parent parcels owned by Patterson from which the 2.739 acre parcel was taken. The deed contains a metes and bounds description from a survey conducted by Charles W. Johnson at the time of the sale.

{¶ 4} In 2004, the Harrison County Treasurer initiated proceedings to foreclose on a number of tax liens in the *751county, including a lien on 1.5 acre parcel located in Freeport Township, Section 25, Township 12, and Range 7. The last known owners were Joan H. Liggett, et al.

{¶ 5} Despite having been provided with multiple notices of the tax delinquency on the parcel, including notice by publication, which included the delinquency, parcel number, deed reference (with no volume or page number), and the last known owners' names, the tax bill was not paid and no appearance was made. The trial court entered default judgment foreclosing on the property.

{¶ 6} On November 9, 2009, the Harrison County Auditor sold the parcel at auction to Appellant for a sum of $400.00. The deed was recorded in the Harrison County Recorder's Office on May 18, 2011. A survey of the parcel was conducted following the sale. The 2011 survey description created by William McCullough, reads as follows:

Situated in the Township of Freeport, Harrison County and State of Ohio; and being part of northeast quarter of section 25, township 12 and range 7 and being all of 1.5 acre tract more or less owned by Joan H. Ligget [sic], et al., Vol. 228 Page 241, parcel no. 09-000228.000. This the [sic] property that was sold at Auditors Sale on November 9, 2009 and the 2.5 acre tract in section 25 along the North line of section was created on September 9, 1834 past Auditors somehow determined that this tract consisted of a 1.5 acre tract and a 1.00 acre tract a good and accurate metes and bounds description can not [sic] be found and the only description for Vol. 228 page 241 reads as follows to a stake on the North bank at water edge thence with the meanderings of the creek to a line of trees in the section time and being more fully described as follows * * *.

(Attachment to Deed, Exhibit A-26, Reply dated August 2, 2016.)

{¶ 7} The attachment to the deed provides a metes and bounds description. In addition to the 2.5 acres, the county added .239 acres, creating the 2.739 parcel at issue in this case.

{¶ 8} Approximately three and half years after the parcel was sold to Appellant and approximately two years after the deed to the parcel was recorded, Harrison County Deputy Auditor, Judy Heath, sent a letter to the parties opining that, based upon 1997 Survey, Appellees rightfully owned the 2.739 acre parcel, and that the auditor's sale to Appellant should be rescinded. The Heath letter prompted Appellees to initiate this action naming Appellant, the county auditor, and two other parties that are not relevant to this appeal.

{¶ 9} In their motion for summary judgment, Appellees asserted that Patterson held good title to the parcel at issue in this case through a valid chain of title, while further maintaining that Appellant's title traced through an invalid chain. In support of the motion, Appellees offered evidence relating to the four parent parcels, including deeds, certificates of transfer, a partial copy of the track index for Section 25, Township No. 12, Range No. 7 from Harrison County, and title chain worksheets prepared by Appellees. Appellees also offered tax records demonstrating that they were current in the property taxes owed on the 112.325 acre parcel to argue that the auditor's sale was void pursuant to Ohio law.

{¶ 10} Appellant, on the other hand, offered no evidence in support of its opposition brief. Appellant chose instead to argue that Appellees failed to fulfill their burden of proof on summary judgment. Appellant argued that Appellees failed to establish by clear and convincing evidence *752that they paid property taxes on the parcel, the auditor violated statutory notice requirements, they held good title to the parcel, and Appellant's title was defective. Appellant further argued that genuine issues of material fact existed with respect to all of the foregoing issues, and, therefore, summary judgment was inappropriate. Further, in a motion to strike, Appellant asserted that the trial court should not consider the 1997 Survey and the Heath letter, because they were not properly authenticated, consisted of inadmissible hearsay, and that Johnson the surveyor had not been qualified as an expert.

{¶ 11} In the judgment entry denying the motion to strike, the trial court concluded that the Heath letter constituted an admission by a party opponent - a point conceded by Appellant, and, accordingly, was an exception to the rule against hearsay. The trial court further held that the 1997 survey was a statement for which the party opponent manifested an adoption of belief in its truth, and, pursuant to Evid. R. 801(D)(2)(b), was properly before the trial court. The trial court did not address Appellant's challenges based upon improper authentication and qualification of expert testimony.

{¶ 12} In the summary judgment entry, the trial court offered no analysis of Appellees' chain of title, but provided the following summary of the Appellant's chain of title:

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Cite This Page — Counsel Stack

Bluebook (online)
115 N.E.3d 748, 2018 Ohio 2763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koch-v-ohio-acres4u-llc-ohctapp7harriso-2018.