Scalise v. Johnston Invest., L.L.C.

2018 Ohio 3469

• Court: Ohio Court of Appeals
• Decided: August 29, 2018
• Docket: 28897
• Status: Published

Opinion

[Cite as Scalise v. Johnston Invest., L.L.C., 2018-Ohio-3469.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

KIRSTEN M. SCALISE, Fisal Officer C.A. No. 28897 Summit County Fiscal Office

Appellee APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS JOHNSTON INVESTMENTS, LLC, et al. COUNTY OF SUMMIT, OHIO CASE No. CV-2017-06-2726 Appellant

DECISION AND JOURNAL ENTRY

Dated: August 29, 2018

TEODOSIO, Presiding Judge.

{¶1} Johnston Investments, LLC, appeals the judgment of foreclosure entered by the

Summit County Court of Common Pleas on November 14, 2017. We affirm.

I.

{¶2} In June 2017, Kristen M. Scalise, as Fiscal Officer of Summit County, Ohio, filed

a complaint for foreclosure of liens for land taxes, assessments, penalties, and interest. Johnson

Investments, LLC, (“Johnston”) was one of several defendants named in the complaint as having

a claim or interest upon the premises. Instructions were given to the Clerk of Courts to make

both certified mail and regular mail service of the complaint on all defendants. Additionally, an

affidavit for service by publication was filed in July 2017, with proof of publication being filed

in September 2017. Johnston filed an answer to the complaint on October 18, 2017, raising

defenses including lack of jurisdiction and insufficiency of process and service of process. 2

{¶3} On October 26, 2017, the Fiscal Officer filed a motion for default judgment and a

motion for summary judgment, with the trial court entering judgment on November 14, 2017.

Johnston now appeals, raising one assignment of error.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT LACKED PERSONAL JURISDICTION OVER JOHNSTON INVESTMENTS LLC ON THE GROUNDS THAT THERE [WAS] INSUFFICIENCY OF PROCESS AND/OR INSUFFICIENCY OF SERVICE OF PROCESS; AS SUCH, THE TRIAL COURT’S JUDGMENT OF FORECLOSURE ENTERED ON NOVEMBER 14, 2017[,] IS VOID AB INITIO.

{¶4} In its assignment of error, Johnston Investments argues the trial court lacked

personal jurisdiction over it because of insufficiency of process or service of process, and that as

a consequence the trial court’s judgment was void ab initio. We disagree.

{¶5} “Personal jurisdiction is a question of law that appellate courts review de novo.”

Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, ¶ 11. “A de novo review

requires an independent review of the trial court’s decision without any deference to the trial

court’s determination.” State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.

{¶6} In making its argument that the trial court lacked personal jurisdiction, Johnston

sets forth several assertions, contending that service of process was not perfected in accordance

with Civ.R. 4.6(D), that service by publication was not an authorized method, and that service by

publication was defective. Johnston’s assignment of error, however, is premised on the theory

that the judgment is void ab initio as a result of the trial court’s lack of personal jurisdiction over

it. This premise is flawed at the outset, as a tax foreclosure is an action in rem. This Court has

previously held “that a tax foreclosure action brought pursuant to R.C. 5721.18 constitutes an in

rem proceeding, and thus ‘it operates on the land itself and not on the title of the one in whose 3

name the property is listed for taxation.’” Lorain County Treasurer v. Schultz, 9th Dist. Lorain

No. 08CA009487, 2009-Ohio-1828, ¶ 10, quoting In re Foreclosure of Lien for Delinquent

Taxes by Action in Rem, 7th Dist. Jefferson No. 06-JE-40, 2008-Ohio-1173, ¶ 18, quoting Hunter

v. Grier, 173 Ohio St. 158, 161 (1962). Therefore, an “alleged error based on a lack of personal

jurisdiction is misplaced.” Id.

{¶7} Johnston contends that because the complaint seeks the foreclosure of all claims

and interest in the property, it is an action in personam rather than an action in rem, but provides

no authority in support of this argument. See App.R. 16(A)(7). Moreover, as discussed above,

this Court has previously established that a tax foreclosure is an action in rem. Schultz at ¶ 10.

We also note that the face of the complaint specifically sets forth that it seeks foreclosure by

action in rem.

{¶8} We conclude that the trial court’s order of foreclosure was not void ab initio for

lack of personal jurisdiction. This assignment of error is decided solely upon the issue of

personal jurisdiction as it is the basis of Johnston’s appeal, and we make no determinations with

regard to any requirements, statutory or otherwise, of notice or due process.

{¶9} Johnston’s assignment of error is overruled.

III.

{¶10} Johnston’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 4

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT

CALLAHAN, J. CONCURS.

CARR, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

ROBERT C. MEEKER, Attorney at Law, for Appellant.

PETER W. NISCHT, Attorney at Law, for Appellee.