[Cite as Musial Offices, Ltd. v. Cuyahoga Cty., 2020-Ohio-3660.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

MUSIAL OFFICES, LTD.,                                  :

                 Plaintiff-Appellee/                   :
                 Cross-Appellant,                                  No. 108478
                                                       :
         v.
                                                       :
COUNTY OF CUYAHOGA, ET AL.,
                                                       :
                 Defendants-Appellants/
                 Cross-Appellees.                      :



                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
                           AND REMANDED
                 RELEASED AND JOURNALIZED: July 9, 2020


              Civil Appeal from the Cuyahoga County Court of Common Pleas
                                  Case No. CV-11-746704


                                            Appearances:

                 Dworken & Bernstein Co., L.P.A., and Patrick J. Perotti,
                 Nicole T. Fiorelli, and James S. Timmerberg; Mellino
                 Robenalt L.L.C., and Thomas D. Robenalt, for
                 appellee/cross-appellant.

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Charles E. Hannan, Brian R. Gutkoski, and
                 Kenneth M. Rock, Assistant Prosecuting Attorneys; Greg
                 G. Huth, Cuyahoga County Director of Law, and Joseph
                 W. Boatwright, IV, Assistant Director of Law, for
                 appellants/cross-appellees.
EILEEN T. GALLAGHER, A.J.:

               Defendants-appellants, Cuyahoga County, Armond Budish, and the

Cuyahoga County Board of Revision (collectively “Cuyahoga County” or “the

county”), appeal a judgment rendered in favor of plaintiff-appellee, Musial Offices,

Ltd. (“Musial”), on behalf of a class of plaintiffs composed of Cuyahoga County

property owners (collectively referred to as “Musial” or “plaintiffs”). The county

claims the following five errors:

      1. The trial court lacked subject matter jurisdiction to hear a case
      challenging the valuation of real property that was filed in the court of
      common pleas in an effort to bypass Ohio’s comprehensive statutory
      administrative process that was established to adjudicate and resolve
      such complaints.

      2. The trial court erred by entering judgment against Cuyahoga
      County, an Ohio political subdivision, on the basis of an alleged claim
      founded upon unjust enrichment.

      3. The trial court erred by denying the appellants’ motions to decertify
      the class after material factual variations among the purported class
      members emerged after the class was certified.

      4. The trial court erred by awarding the plaintiff class prejudgment
      interest.

      5. The trial court erred by ordering the county to pay the judgment to
      class counsel.

               Musial filed a cross-appeal and claims the following two assignments

of error:

      1. The trial court erred in denying Musial Offices’ equal protection
      claim in its March 23, 2018 judgment entry.

      2. The trial court erred in denying plaintiffs’ statutory claim for illegal
      taxation in its March 23, 2018 judgment entry.
               Finding some merit to the county’s appeal as well as Musial’s cross-

appeal, we affirm the trial court’s judgment in part, reverse it in part, and remand

the case to the trial court to enter judgment in favor of Musial and the plaintiff class

on its illegal taxation claim.

                         I. Facts and Procedural History

               Musial brought this class action to recover the overpayment of real

property taxes on behalf of itself and members of a certified class of similarly

situated property owners. Musial is the owner of real property located in Westlake,

Ohio. In 2005, the Cuyahoga County auditor1 assigned a tax value of $679,500 to

Musial’s property for the 2006, 2007, and 2008 tax years. Following the start of the

Great Recession in December 2007, real estate values declined, and Musial filed a

decrease complaint with the Cuyahoga County Board of Revision for the 2008 tax

year. The Westlake Board of Education filed a counterclaim seeking to retain the

auditor’s valuation.

               Real property tax is based on a percentage of the property’s taxable

value. Pursuant to R.C. 5713.01(B), the county auditor is required to determine the

taxable value of real property through periodic appraisals, known as sexennial and

triennial appraisals. R.C. 5713.01(B). The sexennial appraisal, which is conducted

every six years, requires the auditor to actually “view and appraise” the property.

R.C. 5713.01(B). A triennial appraisal, also referred to as a “statistical update,” is


      1   On January 11, 2011, Cuyahoga County converted to a charter form of
government pursuant to Article X, Section 3, Ohio Constitution. The new Cuyahoga
County Charter created the position of a Fiscal Officer, who is appointed by the County
Executive, to replace the formerly elected auditor position.
conducted three years after the last sexennial appraisal and does not require the

auditor to view the property. (Tr. 304, 321.) The triennial appraisal is based on

statistical data, such as property sales and construction in the surrounding

community. (Tr. 306.) The statistical data is used to generate a “use factor” applied

to all properties in a particular area based on an estimation of the average

percentage of appreciation or depreciation in value of the properties since the last

appraisal. (Tr. 246-248.) By applying the use factor, all parcels within a specific

class are reappraised up, down, or without a change, by the same percentage

amount.

               A property owner may challenge the auditor’s valuation for a current

tax year, regardless of whether the auditor reappraised the property that year, by

filing a decrease complaint with the county auditor by March 31st of the following

tax year. R.C. 5715.19(A)(1)(d). Because real property taxes are billed almost one

year behind, a taxpayer is billed in December for the first half of a tax year based on

the property’s value as of January 1st of that same year. A taxpayer challenging the

tax value of property for the 2008 tax year would have until March 31, 2009, to file

the complaint.

               If a complaint is filed with the auditor, the auditor is required to

present it to the county’s board of revision to “hear complaints and revise

assessments of real property for taxation.” R.C. 5715.01(B). As part of the process,

the auditor must notify the local board of education of the taxpayer’s complaint

within 30 days of March 31, whereupon the board of education, the recipient of a

large percentage of the tax collected, may file a counterclaim against the value within
30 days, i.e., by April 30th. R.C. 5715.19(A)(1). Pursuant to R.C. 5715.19(C), the

board of revision “shall hear and render its decision on a complaint” within 90 days

of the date the property owner’s complaint was filed with the board, or, if the board

of education asserted its own challenge to the value, within 90 days of the board’s

counterclaim. Thus, the board of revision is statutorily required to render a decision

on a complaint with a counterclaim no later than 120 days after April 30th, i.e.,

before the end of August. The auditor records property values in a database called

Sigma. (Tr. 302.)

               The Cuyahoga County auditor conducted a sexennial reappraisal of

properties within the county in 2006, and valued Musial’s property at $679,500.

When real property values declined in 2008 during the Great Recession, Musial filed

a complaint against the valuation of its property in January 2009, for the 2008 tax

year.2 Following the board of revision hearing, on January 13, 2010, Musial received

a letter of correction from Frank Russo (“Russo”), who served as both the county

auditor and secretary of the board of revision. The letter stated that the tax value of

Musial’s property was reduced to $499,000 for the 2008 tax year. The letter further

stated: “If no action is taken, the Board’s decision will be reflected in your next tax

bill.”

               Musial paid the December 2009 tax bill for the first half of 2009

without protest even though the bill reflected the $679,500 valuation of the


         2In a typical year, the Cuyahoga County auditor received between 2,000 and
3,000 complaints. The auditor might have received between 6,000 and 7,000 complaints
in an unusually busy year. The auditor received 25,000 decrease complaints for the 2008
tax year and another 20,000 complaints for the 2009 tax year. (Tr. 228.)
property. Mark Musial, Musial’s principal, testified at trial that he did not believe

any further action was necessary to correct the tax bill since the correction letter

indicated the correction would be reflected in Musial’s next tax bill. However, in

June 2010, Musial received a property tax bill for the second half of 2009 that

reflected a tax value of $679,500 instead of the board of revision’s reduced amount

of $499,000. By then, the deadline to appeal the 2009 tax value to the board of

revision had expired.

              Meanwhile, the auditor conducted a statistical update for the

triennium beginning in 2009, and determined that the reappraised value of Musial’s

property would be the 2008 value, multiplied by a factor of one. (Tr. 324.) In other

words, the tax value of the property for the next triennium (2009, 2010, and 2011)

remained the same as the 2008 value. (Tr. 324-325.) However, the auditor did not

use the correct 2008 tax value of the property, i.e., $499,000, when he applied the

“use factor” for the triennial update because the auditor did not receive the board of

revision’s decision on Musial’s decrease complaint until January 2010, after the

triennial update had already been completed. After receiving the board of revision’s

decision, the auditor updated the correct value of $499,000 of Musial’s property for

the 2008 tax year in the Sigma database, but never corrected the value for the 2009

tax year, or any subsequent tax years in the triennium.

              After receiving the tax bill for the second half of the 2009 tax year,

which still reflected a value of $679,500, Musial sent a letter to the auditor and the

board of revision asking them to correct the mistake. Martin Murphy (“Murphy”),

the acting administrator of the board of revision, informed Musial that the county
recognized there was a problem and was endeavoring to fix it. Meanwhile, the

Cleveland Plain Dealer reported stories that numerous property owners had been

overcharged in their 2009 property tax bills. When the county failed to correct

Musial’s tax bill and issue a refund of the amount of overpaid taxes, Musial filed a

class action complaint in the Cuyahoga County Common Pleas Court in January

2011. Musial twice amended its complaint and asserted claims for disgorgement,

unjust enrichment, due process and equal protection, injunctive relief, the

imposition of an illegal tax in violation of R.C. 2723.01, and extraordinary relief in

mandamus.

               Musial later moved for class certification. Meanwhile, the county

moved to dismiss Musial’s second amended complaint, arguing the trial court lacked

jurisdiction because Musial failed to exhaust its administrative remedies by

appealing the board of revision’s decision to the board of tax appeals. The trial court

denied the county’s motion to dismiss and denied Musial’s motion for class

certification. Both Musial and the county appealed.

               On appeal, this court found that the trial court had subject matter

jurisdiction to hear Musial’s case because Musial was not challenging the board of

revision’s valuation of its property; it was merely seeking to enforce its valuation,

and R.C. 2723.01 expressly confers jurisdiction on the common pleas court to hear

claims for the recovery of overpaid taxes. Musial Offices, Ltd. v. Cty. of Cuyahoga,

8th Dist. Cuyahoga No. 99781, 2014-Ohio-602, ¶ 16 (“Musial I”). This court also

reversed the trial court’s judgment denying class certification and ruled that
Musial’s claims were not barred by the one-year statute of limitations set forth in

R.C. 2723.01.

                On remand, the trial court certified the following class:

      Cuyahoga County property owners who filed a complaint against
      valuation for tax year 2008 that resulted in the Board of Revision
      reducing the taxable value of the property, whose 2009 value was taxed
      using a higher value.

                Thereafter, the county filed a third-party complaint against the Ohio

state tax commissioner and filed a motion for judgment on the pleadings, arguing,

among other things, that it was immune from liability for the plaintiffs’ claims

pursuant to sovereign immunity provided by R.C. Chapter 2744. The court partially

granted the county’s motion for judgment on the pleadings and dismissed the

plaintiffs’ claims for disgorgement and injunctive relief alleged in Counts 1 and 4 of

the second amended complaint. The court also dismissed the county’s third-party

complaint against the Ohio tax commissioner.

                The county had also filed a motion to dismiss for lack of subject

matter jurisdiction and for Musial’s failure to join all taxing authorities within

Cuyahoga County as necessary and indispensable parties. The trial court denied the

county’s motion to dismiss and denied the county’s claim for sovereign immunity

under R.C. Chapter 2744 on grounds that none of Musial’s claims alleged

negligence.

                A bench trial began in September 2015. The trial court empaneled an

advisory jury on its own motion pursuant to Civ.R. 39(C)(1). The advisory jury

returned a verdict in favor Musial on its claim for unjust enrichment. The trial court
declined to adopt the verdict at that time, but indicated the jury’s advisory verdict

would be taken into account when the court decided the merits of all of Musial’s

claims and the county’s defenses.

              The court later heard arguments on the claims not tried to the jury

and rendered findings of fact and conclusions of law on March 23, 2018. The court

found in favor of the county on the plaintiffs’ due process and equal protection

claims alleged in Count 3 of the second amended complaint. The court also found

in favor of the county on the plaintiffs’ illegal taxation claim alleged in Count 5.

However, the trial court found in the plaintiffs’ favor on its unjust enrichment claim

alleged in Count 2 of the second amended complaint and ordered the county to make

restitution to the plaintiff class in the amount of $3,927,385.91. Having made an

award for unjust enrichment, the trial court determined the plaintiffs’ claim for

mandamus, alleged in Count 6, was moot because the unjust enrichment claim

afforded the plaintiffs an adequate remedy at law.

              Thereafter, the plaintiffs moved for prejudgment interest pursuant to

R.C. 1343.03(A), for attorney fees equal to 50 percent of the $3,927,385.91

restitution award, and for a separate incentive compensation award to Musial in the

amount of $25,000. The county opposed the plaintiffs’ motions and filed a motion

for class decertification and set-off. The trial court denied the county’s motion to

decertify the class and entered final judgment in favor of the plaintiff class in the

amount of $3,927,385.91, plus prejudgment interest in the amount of $871,454.31,

plus interest at the statutory rate from February 28, 2018, on $3,927,385.91 until

paid, plus court costs. The court further awarded class counsel attorney fees equal
to 50 percent of the judgment, in the amount of $2,399,420.11, and granted Musial

an additional incentive compensation award of $25,000.00.

               Both parties again appeal the trial court’s judgment. We discuss

Musial’s assigned errors and the errors assigned in the cross-appeal out of order

because they are interrelated.

                              II. Law and Analysis

                                 A. Jurisdiction

               In the first assignment of error, the county argues the trial court

lacked jurisdiction to hear Musial’s case because its claims constituted a challenge

to the valuation of its real property, and such claims must proceed through a

statutorily prescribed administrative process. The county contends that Musial and

members of the plaintiffs’ class illegally attempted to circumvent a statutory scheme

that requires them to exhaust their administrative remedies before invoking the

common pleas court’s jurisdiction.

               However, the county previously raised this argument in Musial I. See

Musial Offices, Ltd., 8th Dist. Cuyahoga No. 99781, 2014-Ohio-602, ¶ 8-17. In

Musial I, we held that Musial was not required to exhaust its administrative

remedies before filing its complaint in the common pleas court because Musial was

not challenging the valuation of its property; it was seeking an order enforcing the

board of revision’s valuation of its property pursuant to R.C. 2723.01. Id. at ¶ 16.

               Our previous determination that the trial court had jurisdiction to

hear Musial’s claims is the law of the case. Under the law of the case doctrine, “the

decision of a reviewing court in a case remains the law of that case on legal questions
involved for all subsequent proceedings in the case at both trial and reviewing

levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984); accord Rimmer

v. CitiFinancial Inc., 8th Dist. Cuyahoga No. 108081, 2020-Ohio-99, ¶ 43.

              “The law of the case doctrine is rooted in principles of res judicata and

issue preclusion.” State v. Harding, 10th Dist. Franklin No. 10AP-370, 2011-Ohio-

557, ¶ 16, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, ¶ 35. It ensures consistency of results in a case, prevents endless litigation by

settling the issues, and preserves the structure of superior and inferior courts as

designed by the Ohio Constitution. Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d

402, 404, 659 N.E.2d 781 (1996).

              Our prior decision in Musial I, that the trial court had jurisdiction to

hear Musial’s claims because Musial’s claims did not involve a valuation of real

property but rather sought recovery of overpaid taxes under R.C. 2723.01, is the law

of the case. Therefore, the county’s first assignment of error is overruled.

                             B. Unjust Enrichment

              In the county’s second assignment of error, it argues the trial court

erred in entering judgment against it on Musial’s unjust enrichment claim.

              Unjust enrichment occurs when a person “has and retains money or

benefits which in justice and equity belong to another[.]” Hummel v. Hummel, 133

Ohio St. 520, 528, 14 N.E.2d 923 (1938). Restitution is the remedy for unjust

enrichment “‘to prevent one from retaining property to which he is not justly

entitled.’” San Allen v. Buehrer, 8th Dist. Cuyahoga No. 99786, 2014-Ohio-2071,
¶ 114, quoting Keco Industries, Inc. v. Cincinnati & Suburban Bell Tel. Co., 166 Ohio

St. 254, 256, 141 N.E.2d 465 (1957).

              To establish a claim for unjust enrichment, a plaintiff must prove, by

a preponderance of the evidence, that (1) the plaintiff conferred a benefit upon the

defendant, (2) the defendant had knowledge of such benefit, and (3) the defendant

retained that benefit under circumstances in which it would be unjust for him to

retain that benefit. Id.; Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-

4985, 834 N.E.2d 791, ¶ 20.

              The county contends the trial court erred in entering judgment

against it on the plaintiffs’ unjust enrichment claim because, as a blanket rule,

governmental entities cannot be held liable for unjust enrichment under Ohio law

under any circumstances. However, “Ohio courts have long recognized persons for

whom funds have been unlawfully collected and retained by the state may be entitled

to equitable restitution.” San Allen at ¶ 123, citing State ex rel. Zone Cab Corp. v.

Indus. Comm., 132 Ohio St. 437, 8 N.E.2d 438 (1937). See also Santos v. Ohio Bur.

of Workers’ Comp., 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441 (Plaintiff

could bring an action against the Ohio Bureau of Workers’ Compensation in the

common pleas court for unjust enrichment.); Lycan v. Cleveland, 8th Dist.

Cuyahoga No. 94353, 2010-Ohio-6021, overruled on other grounds, Lycan v.

Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593 (Plaintiffs may pursue

unjust enrichment claims against a city for improper collection of traffic fines.);

Barrow v. New Miami, 12th Dist. Butler No. CA2017-03-031, 2018-Ohio-217
(Plaintiffs may pursue unjust enrichment claims against a city for improper

collection of traffic fines.).

                Nevertheless, in support of its argument that governmental entities

cannot be held liable for unjust enrichment, the county cites several cases including

Kraft Constr. Co. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio App.3d 33, 713 N.E.2d

1075 (8th Dist.1998); Sylvester Summers, Jr. Co., L.P.A. v. E. Cleveland, 8th Dist.

Cuyahoga No. 98227, 2013-Ohio-1339, ¶ 26; and Alpha Plaza Invests., Ltd. v.

Cleveland, 2018-Ohio-486, 105 N.E.3d 680, ¶ 6 (8th Dist.).

                In Kraft, this court stated, in relevant part:

       It is a long-standing principle of Ohio law that “all governmental
       liability ex contractu must be express and must be entered into in the
       prescribed manner, and that a municipality or county is liable neither
       on an implied contract nor upon a quantum meruit by reason of
       benefits received.” 20 O.Jur.3d “Counties, Townships and Municipal
       Corporations” § 278 at 241.

Kraft at 44.

                However, the decisive term in the quotation is “ex contractu,” which

means “[a]rising from a contract.” Black’s Law Dictionary 608 (8th Ed.2004).

Regarding government contracts, the Kraft court explained:

       “Whatever the rule may be elsewhere, in this state the public policy, as
       indicated by our constitution, statutes and decided cases, is, that to
       bind the state, a county or city for supplies of any kind, the purchase
       must be substantially in conformity to the statute on that subject, and
       that contracts made in violation or disregard of such statutes are void,
       not merely voidable, and that courts will not lend their aid to enforce
       such a contract directly or indirectly, but will leave the parties where
       they have placed themselves. If the contract is executed, no action can
       be maintained to enforce it, and if executed on one side, no recovery
       can be had against the party of the other side.”
Id. at 44, quoting Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406, 419-420, 54

N.E. 372 (1899).

              The policy precluding ex contractu claims against governmental

entities is based on the principle that a “municipality cannot enter into a contract

* * * except by ordinance or resolution of its counsel.” Wellston v. Morgan, 65 Ohio

St. 219, 62 N.E. 127 (1901); see also Cooney v. Independence, 8th Dist. Cuyahoga

No. 66509, 1994 Ohio App. LEXIS 5290, *5 (Nov. 23, 1994) (“[M]unicipalities may

not be bound to a contract unless the agreement is formally ratified through proper

channels.”). The Wellston court explained, “it devolves upon those who deal with

public officers, to see for themselves that the statutes have been complied with.” Id.

at 229. If the statutes have not been complied with, the contract is void, and the

municipality or county cannot be held liable on claims for an implied contract or

quantum meruit even if the county or municipality received benefits from the

exchange. Kraft at 44. The rationale is that “if a party to a contract not complying

with the formalities required by law for municipal contracts could recover on an

implied contract, then the purposes of the General Assembly, in requiring such

formalities, would be circumvented.” Indian Hill v. Atkins, 153 Ohio St. 562, 570,

93 N.E.2d 22 (1950). It is, therefore, against public policy to permit a party, who

could have insisted on compliance with statutory formalities, to recover on an

equitable theory, such as unjust enrichment, for performance rendered under a void

municipal contract. Id.; see also Sylvester Summers, Jr. Co., L.P.A., 8th Dist.

Cuyahoga No. 98227, 2013-Ohio-1339 (Attorney could not recover fees for services
rendered to city on a theory of unjust enrichment where contract was unenforceable

due to failure to comply with statutory requirements.).

               Despite the county’s argument to the contrary, we affirmed an award

of unjust enrichment against a municipality in Kraft, because the city unjustly

retained benefits conferred by Kraft, and there was no contract, bargain, or exchange

of goods or services between Kraft and the county. See Kraft at 45. Similarly, in San

Allen, 8th Dist. Cuyahoga No. 99786, 2014-Ohio-2071, this court held that

employers could recover the overpayment of workers’ compensation premiums

from the Ohio Bureau of Workers’ Compensation (“BWC”) because “where the state

collects and retains funds to which the state is not lawfully entitled, those funds must

be returned as the equities require.” Id. at ¶ 126. Indeed, the Restatement of the

Law of Restitution holds that “payment of a tax that is erroneously or illegally

assessed or collected, gives the taxpayer a claim in restitution against the taxing

authority as necessary to prevent unjust enrichment.” Restatement of the Law 3d,

Restitution and Unjust Enrichment, Section 19(1) (2011). Therefore, a plaintiff may

recover damages on an unjust enrichment claim against the government under

certain circumstances.

               All of the cases cited by the county in support of its argument involve

ex contractu claims, except for Kraft, and Morton v. Murray, 8th Dist. Cuyahoga

No. 106759, 2018-Ohio-5178.        As previously stated, in Kraft, we affirmed a

judgment on a claim for unjust enrichment against the county because the county

unjustly retained a benefit conferred on it by Kraft and the benefit did not result

from any form contract or quasi-contract. Thus, Kraft is consistent with the
precedent of this court and of the Ohio Supreme Court, which holds that although

governmental entities cannot be held liable for unjust enrichment arising ex

contractu, governmental entities may nevertheless be liable for unjust enrichment

in cases not involving bargained-for benefits where the government unjustly

“‘retains money or benefits which in justice and in equity belong to another.’” San

Allen, 8th Dist. Cuyahoga No. 99786, 2014-Ohio-2071, at ¶ 114, quoting Smith v.

Vaughn, 174 Ohio App.3d 473, 2007-Ohio-7061, 882 N.E.2d 941, ¶ 10 (1st

Dist.2007), quoting Johnson, 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791

at ¶ 20.

               In Morton, an attorney filed a complaint against the Cuyahoga

County treasurer to recover attorney fees incurred for his work before the board of

revision, which lead to a reduction of real estate taxes for his clients. The trial court

granted summary judgment to the treasurer because the treasurer could only credit

an overpayment of taxes to the person who overpaid them, and the lawyer stipulated

that he never paid any tax on the property. Id. at ¶ 2. In affirming summary

judgment in favor of the county treasurer, this court held that the treasurer was not

liable for unjust enrichment because the lawyer “had no right to any overpayment

of real estate taxes because the credit for overpayment belongs to the person who

made the payment.” Id. at ¶ 6. Nevertheless, this court further held that “a county,

like a municipality, cannot be held liable for unjust enrichment.” Id. at ¶ 5.

               The county argues that pursuant to Morton, 8th Dist. Cuyahoga No.

106759, 2018-Ohio-5178, we must similarly hold that the county, as a government

entity, cannot be held liable for unjust enrichment under any circumstances.
However, the court in Morton did not address Ohio Supreme Court precedent

expressly holding that plaintiffs may maintain unjust enrichment claims against the

government. In Santos, 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, the Ohio

Supreme Court specifically held that an employee could bring an unjust enrichment

claim against the BWC in a court of common pleas to recover funds that were

wrongfully collected by the state. Id. at ¶ 17. Rather than citing Santos, the Morton

court relied on NaphCare, Inc. v. Cty. Council of Summit Cty., 9th Dist. Summit No.

24906, 2010-Ohio-4458.

              In NaphCare, the plaintiff provided healthcare services to inmates at

the Summit County jail and sued the county for unpaid services. The county argued

the contract was void because the amount the plaintiff sought was not properly

certified under R.C. 5705.41(D)(1). Id. at ¶ 5. In affirming summary judgment in

favor of the county, the Ninth District held that anyone who enters into a contract

with the county bears the burden of ensuring that the contract “‘complies with the

Constitution, statutes, charters, and ordinances so far as they are applicable. If he

does not, he performs at his peril.’” Id. at ¶ 22, quoting The Lathrop Co. v. Toledo,

5 Ohio St.2d 165, 173, 214 N.E.2d 408 (1966). The NaphCare court held that

because the contract was not formed in the statutorily prescribed manner, the

contract was void, and the county could not be held liable for unjust enrichment. Id.

at ¶ 23. NaphCare is consistent with cases holding that governmental entities

cannot be held liable for unjust enrichment arising ex contractu.

              However, unlike NaphCare, or any of the ex contractu cases, neither

Musial nor any member of the class, sought money for goods supplied or services
rendered. Nor did they attempt to evade rules pertaining to government contracts.

Musial and the plaintiffs were overcharged property taxes due to a clerical error. As

previously stated, “payment of a tax that is erroneously or illegally assessed or

collected, gives the taxpayer a claim in restitution against the taxing authority as

necessary to present unjust enrichment[.]” Restatement of the Law 3d, Restitution

and Unjust Enrichment 19(1) (2011). Comment a of the Restatement further states

that a taxpayer has “a prima facie claim in restitution to recover any payment of

taxes, fees, or other governmental charges in excess of the taxpayer’s true

obligation.” Therefore, despite this court’s holding in Morton, the Ohio Supreme

Court held in Santos that government entities may be held liable for unjust

enrichment and ordered to pay restitution of funds that were wrongfully collected

and retained by the government.

               However, since the Ohio Supreme Court decided Santos, the Ohio

Supreme Court decided Cleveland v. Ohio Bur. of Workers’ Comp., Slip Opinion No.

2020-Ohio-337, which clarifies the limited circumstances under which a plaintiff

may prevail on an equitable claim for unjust enrichment. In Cleveland v. Ohio Bur.

of Workers’ Comp., the Ohio Supreme Court was asked to determine whether a

common pleas court had jurisdiction over an employer’s claim against the Ohio

Bureau of Workers’ Compensation for the reimbursement of alleged excessive

premiums paid by the employer. Common pleas courts have jurisdiction over

equitable claims against the state, but only the Ohio Court of Claims has jurisdiction

over legal claims for restitution. Id. at ¶ 10. To answer this jurisdictional question,
the court had to determine whether a claim to recover the overpayment of premiums

to the Bureau of Workers’ Compensation was an equitable claim or a legal claim.

               The court held that a claim to recover overpayment of premiums is a

legal, rather than an equitable claim, “if there is not a specifically identifiable fund,

or traceable items on which the money from the fund was spent * * * .” Id. at ¶ 16.

In concluding that the overpayment of premiums is a legal rather than an equitable

claim, the court stated:

      [T]he [United States Supreme] court explained that a claim sounded in
      law if it sought to recover from a defendant’s general assets rather than
      “specifically identified funds that remain in the defendant’s
      possession.” Montanile v. Natl. Elevator Industry Health Benefit Plan
      Bd. of Trustees, __ U.S. __ , 136 S.Ct. 651, 658, 193 L.Ed.2d 556 (2016).
      The court further explained that “[e]quitable remedies ‘are, as a general
      rule, directed against some specific thing; they give or enforce a right
      to or over some particular thing * * * rather than a right to recover a
      sum of money generally out of the defendant’s assets.’ 4 S. Symons,
      Pomeroy’s Equity Jurisprudence § 1234, p. 694 (5th ed. 1941)
      (Pomeroy).” (Ellipsis sic.) Montanile at , 136 S.Ct. at 658-659. The
      court stated that if there is not a specifically identifiable fund, or
      traceable items on which the money from the fund was spent, to seize,
      “the plaintiff could not attach the defendant’s general assets instead.”
      Id. at 659. In such a case, “[t]he plaintiff had ‘merely a personal claim
      against the wrongdoer’—a quintessential action at law.” Id., quoting
      Restatement of the Law, Restitution, Section 215(1), at 866 (1936).

      Although the BWC kept track of the amount of Cleveland’s premium
      payments, R.C. 4123.34(A), Cleveland’s premiums went into a general
      insurance fund, R.C. 4123.30, i.e., they were not kept separate from
      payments made by other public employers. Once Cleveland’s premium
      payment was deposited into the fund, it became commingled with the
      premium payments from other employers. And even if we considered
      the state insurance fund itself to be a specific fund, Cleveland paid the
      last funds it seeks to recover in 2009. It is inconceivable how money
      belonging to Cleveland could “clearly be traced to particular funds or
      property” in the BWC’s possession, see Great-West [Life & Annuity Ins.
      Co. v. Knudson], 534 U.S. at 213, 122 S.Ct. 708, 151 L.Ed.2d 635
      (Historically, an equitable claim for restitution was one in which
      “money or property identified as belonging in good conscience to the
      plaintiff could clearly be traced to particular funds or property in the
      defendant’s possession”). The BWC has paid that money out as
      compensation to injured workers or refunds to covered employers. The
      money allegedly overpaid is no longer in the BWC’s possession and
      cannot be recovered by a suit in equity. Thus, Cleveland’s claim sounds
      in law and must proceed through the Court of Claims, which has
      exclusive jurisdiction over legal claims against the BWC.

Cleveland at ¶ 16-17.

               The county asserts that it “serves principally as a conduit that passes

property taxes paid into the county treasury * * * onto other governmental entities,

such as tax-supported school districts, cities, parks, and libraries[.]” (Appellants’

brief at 28.) Indeed, the county treasurer is required by law to make semiannual

distributions of the proceeds of real property taxes to local municipal corporations.

R.C. 321.33; 2004 Ohio Atty Gen. Ops. No. 22, *5. Thus, the overpayment of taxes

made by Musial and the class of plaintiffs did not remain in the county’s general

fund where their payments could be easily traced. Nor were their payments kept

separate from payments made by other taxpayers; they were commingled with other

taxpayers’ payments and disbursed to various local municipalities. In short, the

plaintiffs’ overpayments in taxes are no longer in the county’s possession and cannot

be recovered by a suit in equity.

               We, therefore, sustain the county’s second assignment of error.

                            C. Illegal Taxation Claim

               We turn next to the second cross-assignment of error because it

concerns Musial’s statutory claim for illegal taxation, which represents an

alternative theory to the plaintiffs’ unjust enrichment claim. In this assigned error,

Musial argues the trial court erred in dismissing its illegal taxation claim.
               Musial asserted its illegal taxation claim pursuant to R.C. 2723.01,

which states, in relevant part:

      Courts of common pleas may enjoin the illegal levy or collection of taxes
      and assessments and entertain actions to recover them when collected,
      without regard to the amount thereof * * * .

               In determining the taxable value of real property, R.C. 5713.03

requires the county auditor to determine the value of the property “from the best

source of information available.” Musial and the plaintiffs argue the county illegally

collected their property taxes in violation of R.C. 5713.03 because the auditor used

the inflated 2008 values when it calculated the 2009 statistical reappraisal and

carried the inflated figures over for the 2010 and 2011 tax years, instead of using “the

best source of information available,” i.e., the board of revision’s determination of

the 2008 values.

               The county argues that although Musial successfully challenged the

2008 tax value of its property, a new value had to be determined by the county

auditor for the 2009 tax year in the course of a triennial update, and Musial did not

file a decrease complaint to challenge the 2009 tax value of its property by the March

31, 2010, deadline. The county further asserts that any determination made as to

the 2008 value of Musial’s property would not, under R.C. 5715.19(D),

“carryforward” or “carryover” to 2009.

               Regarding the carryover of reduced property values, R.C. 5715.19(D)

provides, in relevant part:

      The determination of any such complaint shall relate back to the date
      when the lien for taxes or recoupment charges for the current year
      attached or the date as of which liability for such year was determined.
      Liability for taxes and recoupment charges for such year and each
      succeeding year until the complaint is finally determined and for any
      penalty and interest for nonpayment thereof within the time required
      by law shall be based upon the determination, valuation, or assessment
      as finally determined.

              Interpreting R.C. 5715.19(D), the Ohio Supreme Court explained that

      When a subject property’s value is reduced in the middle of a triennium
      update, the reduced value carries forward until the end of that
      triennium, and at the start of the next sexennial valuation, the auditor
      must reappraise the property and determine a new value going
      forward.

State ex rel. Mars Urban Sols., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 155 Ohio

St.3d 316, 2018-Ohio-4668, 121 N.E.3d 311, ¶ 11. The county argues that because

the 2009 tax year was the start of a new triennial, the 2008 tax value of Musial’s

property did not “carryover” into 2009.

              However, the 2008 value was the starting point for the triennial

statistical update, which became effective on January 1, 2009. James Hopkins

(“Hopkins”), who worked in the Cuyahoga County Auditor’s Office from 1986

through 2011 and currently serves as director of real estate appraisals in the

Cuyahoga County Fiscal Office, testified that in conducting the 2009 triennial

update, the auditor applied a factor of one to the 2008 value of Musial’s property,

which meant that the value of Musial’s property neither increased, nor decreased in

2009. Under the valuation for the new triennium beginning in 2009, the value of

Musial’s property remained the same as the 2008 tax value determined by the board

of revision. Yet, Musial paid taxes on a $679,500 valuation, when the property was

actually valued at $499,000 for the triennium beginning in 2009.
               Hopkins testified that if the correct 2008 tax year value of $499,000

had been used for the 2009 triennial update, then the 2009 value of Musial’s

property would have been $499,000 instead of the $679,500 reflected in the tax bill.

Hopkins also stated that when the auditor received the board of revision’s decision,

the auditor changed the value of Musial’s property for the 2008 tax year to $499,000

in the Sigma database, but never corrected the value for the 2009 tax year, or any

subsequent years in the triennium. (Tr. 328.) Therefore, the county knew, or should

have known, that it collected an overpayment of taxes from Musial for the 2009 tax

year. Moreover, Musial notified the auditor of its mistake in writing, and the

auditor’s failure provide a refund of the overpayment prompted Musial to file the

initial complaint in this case.

               As previously stated, R.C. 2723.01 creates a cause of action to recover

taxes that were collected illegally. The term “illegal” is defined as “not according to

or authorized by law.” Merriam-Webster.com Dictionary, “Illegal,” available at

Merriam-Webster, https://www.merriam-webster.comdictionary/illegal (accessed

June 3, 2020). The county is authorized to levy real estate taxes on real property

pursuant to R.C. 5705.03, and the county auditor is authorized to determine the

taxable value of the real property pursuant to R.C. 5713.03. However, the auditor

did not calculate the tax value of the plaintiffs’ properties “from the best source of

information available” as mandated by R.C. 5713.03. Therefore, the county collected

taxes in excess of the amounts owed by the plaintiffs in violation of R.C. 5713.03.

See Orange Cty. v. Bellsouth Telecommunications, 812 So.2d 475, 478 (Fla. 2002)
(“A tax based on a charger greater than the subscriber is actually required to pay is

illegal.”).

               Any taxes levied against property in excess of the amount determined

by the auditor in accordance with applicable statutes is illegal because they were not

authorized by law. In Musial’s case, the difference between the amount of taxes paid

on the erroneous value of its property (i.e., $679,500) and the taxes that should have

been paid on the correct value of the property (i.e., $499,000) constitutes the

amount of illegal taxes collected from Musial because the excess amount was not

authorized by law. The same calculation may be made for members of the class who

overpaid taxes due to the erroneous overvaluation of their properties.

               The trial court dismissed the plaintiffs’ illegal taxation claim on

grounds that the county treasurer did not know he overcharged the plaintiffs when

he sent their tax bills because the county auditor had not updated the correct

property values in the county database. However, R.C. 2723.01 does not require

proof of knowledge, intent, or any other mens rea. The statute simply provides that

common pleas courts may entertain actions to recover illegally collected taxes. See

R.C. 2723.01. The lack of a mens rea in the statute makes sense since the plaintiffs

cannot recover overpayment of taxes under an unjust enrichment theory, and

immunity would bar their recovery if the statute limited recovery to the negligent

over-collection of taxes. R.C. 2723.01 was enacted to address the very situation

presented in this case, i.e., to allow taxpayers to recover refunds for the overpayment

of taxes that have been collected and retained by the government in violation of the

law.
               The second cross-assignment of error is sustained.

                         D. Decertification of the Class

               In the county’s third assignment of error, it argues the trial court

erred in denying its motion to decertify the class. The county argues material fact

variations among class members emerged after the class was certified that

warranted class decertification.

               Following this court’s mandate in Musial I, the trial court certified the

following plaintiff class:

      Cuyahoga County property owners who filed a complaint against
      valuation for tax year 2008 that resulted in the Board of Revision
      reducing the taxable value of the property, whose 2009 value was taxed
      using a higher value.

               Class certification under Civ.R. 23 requires a plaintiff to establish that

(1) an identifiable and unambiguous class exists, (2) the named representative of the

class is a class member, (3) the class is so numerous that joinder of all members of

the class is impractical, (4) there are questions of law or fact that are common to the

class (“commonality”), (5) the claims or defenses of the representative plaintiff or

plaintiffs are typical of the claims and defenses of the members of the class

(“typicality”), (6) the representative parties fairly and adequately protect the

interests of the class (“adequacy”), and (7) one of the three requirements of Civ.R.

23(B) is satisfied. Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91,

2010-Ohio-1042, 926 N.E.2d 292, ¶ 6.

               After a class has been certified, Civ.R. 23(C)(1)(c) provides that an

order granting class certification “may be altered or amended before final
judgment.” The county argues the trial court should have decertified the class after

it became apparent that the commonality and predominance requirements were not

met because it was impossible to individually calculate the restitution damages for

each member of the plaintiffs’ class. The county further asserts that each property

owner’s case presented its own specific issues for determination that could only be

adjudicated through individual, fact-specific determinations.

              However, the record shows that all members of the class had the 2008

tax value of their properties reduced by the board of revision. The record also shows

the auditor used the wrong 2008 tax value in conducting the triennial update for

members of the class because the board of revision’s decisions on their properties

were issued after the auditor had already submitted values for the 2009 triennial

update. Shelly Davis, administrator of the board of revision, stated in a sworn

affidavit that the “parcels and amounts provided in response to the class definition

were reflective of the people who filed a 2008 [tax year] complaint with the Board

of Revision but did not receive their hearing prior to the Auditor compiling the

values for the 2009 triennial update.” (Davis affidavit ¶ 5, attached to defendant’s

May 31, 2018 motion for hearing on set-off and on motion for decertification.) In

other words, the only class members identified by the county are those for whom the

auditor used an inflated value in calculating the triennial update.

              Nevertheless, the county argues, citing Davis’s affidavit, that it was

virtually impossible to calculate restitution damages for each individual member of

the class due to a number of inconsistent variables. And the county asserts that

some class members were not harmed. However, individual determinations on
damages were not required because the parties stipulated to the plaintiffs’ damages

prior to trial. The stipulation, titled “Joint Damages Stipulation,” was submitted to

the trial court as Plaintiffs’ exhibit No. 29. The stipulation states, in relevant part:

“The parties stipulate that Exhibit A (which will be submitted in camera) accurately

reflects those persons constituting the class in this case, including the amount of

money each class member might be entitled to receive for [tax year] 2009, 2010, and

2011 if plaintiffs were to prevail on their claims in this matter.” Having stipulated to

the amount of restitution for each class member, there was no need to conduct

individual calculations of damages.       Therefore, all the requirements of class

certification were maintained, and the trial court properly overruled the county’s

motion for decertification.

               The county’s third assignment of error is overruled.

                              E. Prejudgment Interest

               In the county’s fourth assignment of error, it argues the trial court

erred in awarding prejudgment interest to the plaintiffs pursuant to R.C. 1343.03,

which states, in relevant part:

      [W]hen money becomes due and payable upon any bond, bill, note, or
      other instrument of writing, upon any book account, upon any
      settlement between parties, upon all verbal contracts entered into, and
      upon all judgments, decrees, and orders of any judicial tribunal for the
      payment of money arising out of tortious conduct or a contract or other
      transaction, the creditor is entitled to interest at the rate per annum
      determined pursuant to section 5703.47 of the Revised Code, unless a
      written contract provides a different rate of interest in relation to the
      money that becomes due and payable, in which case the creditor is
      entitled to interest at the rate provided in that contract.

R.C. 1343.03(A).
              The purpose of prejudgment interest is to promote settlement efforts

and to discourage defendants from frivolously prolonging suits for legitimate claims.

Royal Elec. Constr. Corp. v. Ohio State Univ., 73 Ohio St.3d 110, 116, 652 N.E.2d

687 (1995). Prejudgment interest does not punish the party responsible for the

underlying damages, but acts as compensation for the lapse of time between accrual

of the claim and judgment. Id.

              The county argues the trial court’s award of prejudgment interest

should be reversed because prejudgment interest cannot be awarded on an unjust

enrichment claim under R.C. 1343.03(A). However, because we have determined

that plaintiffs could not recover on their unjust enrichment claim, the county’s

argument that a court may not award prejudgment interest on an unjust enrichment

award is immaterial. Moreover, the Ohio Supreme Court’s decision in Royal Elec.,

73 Ohio St.3d 110, 116, 652 N.E.2d 687, suggests that an award of prejudgment

interest was appropriate in this case.

              Prior to Royal Elec., appellate courts denied prejudgment interest in

certain actions, usually contract cases, if the damages were unliquidated and not

capable of ascertainment by reasonably certain calculation prior to judgment. Id. at

116. In Royal Elec., the court noted that the plain language of R.C. 1343.03(A) did

not differentiate between “liquidated” and “unliquidated” damages nor did the

statute require that a claim be “capable of ascertainment” for purposes of awarding

prejudgment interest. Id. Thus, the court stated that instead of focusing on whether

the claim can be classified as “liquidated,” “unliquidated” or “capable of

ascertainment,” the court should ask: “Has the aggrieved party been fully
compensated?” Id. at 116. The court reasoned that the purpose of awarding

prejudgment interest is to fully compensate the aggrieved party and return the party

to the position he or she would have been in now if the act that gave rise to the

plaintiff’s claim for damages had not occurred. Id. Musial contends the same logic

should apply to its claims in this case.

                Although Royal Elec. involved a breach of contract claim, cases

decided after Royal Elec. have awarded prejudgment interest on noncontractual

claims. See, e.g., Desai v. Franklin, 177 Ohio App.3d 679, 2008-Ohio-3957, 895

N.E.2d 875 (9th Dist.) (Affirming award of prejudgment interest on claims of unjust

enrichment, fraud, and breach of fiduciary duty.); Magnum Steel & Trading L.L.C.

v. Mink, 9th Dist. Summit Nos. 26127 and 26231, 2013-Ohio-2431 (Affirming award

of prejudgment interest on promissory estoppel claim.); Euro Tyres Corp. v. SK

Mach. Corp., N.D. Ohio No. 5:08CV2953, 2010 U.S. Dist. LEXIS 7237 (Jan.28,

2010) (Awarding prejudgment interest on claims of conversion and unjust

enrichment.).

                Evidence of the correct dollar amount of restitution for each member

of the class was presented at trial through a joint stipulation of damages, which was

admitted as plaintiff’s trial exhibit No. 29. The exhibit comprised an extensive

spreadsheet, identifying property owners and their parcel numbers, each owner’s

overpayments due to the auditor’s inflated assessments for the 2009 tax year and, if

applicable, the overpayments for the 2010 and 2011 tax years. These amounts were

readily ascertainable from the county records and could have been refunded years

ago.
               An award of prejudgment interest is designed to ensure that a plaintiff

receives full compensation for his or her loss, including the lost time value of money,

i.e., time during which the money could have been invested. A sum of money

awarded today is not equal to the same amount that should have been paid years

ago.   Unless interest is assessed on the judgment, the plaintiff is not fully

compensated, and the defendant is unjustly enriched. Fed. Deposit Ins. Corp. v.

British-Am. Corp., 755 F.Supp. 1314, 1328 (E.D.N.C. 1991) (“Awarding prejudgment

interest in this case does not penalize defendants, but rather puts each party in the

same position it would now be in had the fraudulent transfer never occurred.”);

Procter & Gamble Distrib. Co. v. Sherman, 2 F.2d 165, 166 (S.D.N.Y. 1924) (L.

Hand, J.) (“The present use of my money is itself a thing of value, and, if I get no

compensation for its loss, my remedy does not altogether right my wrong.”).

               The county nevertheless argues that the trial court’s judgment

awarding prejudgment interest from 2010 is “demonstrably unfair” since the trial

occurred in September 2015, and the court did not return its verdict until March

2018. The county argues it was unfair for the trial court to charge the county interest

for the nearly three years it took the court to render a verdict and still another year

to enter final judgment. However, as previously stated, the county could have

readily ascertained the damages owed to each member of the plaintiffs’ class from

the county records. The refunds should have been paid as soon as the errors were

discovered, and there never should have been a lawsuit. The county could have

avoided years of litigation and prejudgment interest if it had simply refunded the

overpayment of taxes to each of the members of the class in a timely manner.
               The county’s fourth assignment of error is overruled.

                          F. Payment to Class Counsel

               In the county’s fifth assignment of error, it argues the trial court erred

by ordering the county to pay the judgment of $3,927,385.91, plus prejudgment

interest in the amount of $871,454.31 to class counsel. The county contends the

judgment is “ill-advised as a matter of practicality” because some class members

may not receive their refunds if they have died, sold their properties, or failed to

pursue their claims. The county further asserts it is unfair to allow plaintiffs’ counsel

to reap a windfall by retaining unclaimed funds.

               However, unclaimed funds will not be distributed as a windfall to

plaintiffs’ counsel. The “determination of how the court disposes of the common

fund, or the unclaimed portion thereof, falls within the general equity powers of the

court.” 4 Conte & Newberg, Newberg on Class Actions, Section12:28 (5th ed.); Six

(6) Mexican Workers v. Arizona Citrus Growers 904 F.2d 1301, 1307 (9th Cir.

1990), citing Van Gemert v. Boeing Co., 739 F.2d 730, 737 (2d Cir. 1984) (“[C]ourts

have broad discretionary powers in shaping equitable decrees for distributing

unclaimed class action funds.”).

               Both plaintiffs’ counsel and the trial court owe fiduciary duties to the

class members, including the absent members. Wyly v. Milberg Weiss Bershad &

Schulman, L.L.P., 12 N.Y.3d 400, 412, 908 N.E.2d 888 (2009) (Class counsel owe

fiduciary duty to the entire class, including absent class members.); Adame v. Law

Office of Allison & Huerta, Texas App. No. 13-04-670-CV, 2008 Tex. App. LEXIS

3912 (May 22, 2008) (“[C]lass counsel owes a fiduciary duty to protect the interests
of absent class members.”); Ballard v. Martin, 349 Ark. 564, 575, 79 S.W.3d 838

(2002) (A trial court has “duty to act as a fiduciary who must serve as guardian of

the rights of absent class members.”).

               The trial court’s judgment entry, dated April 16, 2019, states, in

relevant part, that “the court retains jurisdiction to administer the settlement and to

make a further order regarding the disposition of funds in the hands of class counsel

that remain unclaimed after diligent efforts to locate and remunerate all individual

class members.” Thus, the trial court has acknowledged its fiduciary duty to the

entire class and safeguarded against an unfair windfall to plaintiffs’ counsel.

Moreover, the county may participate in any matters involving unclaimed funds

and, therefore, has not been left “entirely out of the process.” (Appellant’s brief at

p. 40.)

               Therefore, the county’s fifth assignment of error is overruled.

                                 G. Equal Protection

               In Musial’s first cross-assignment of error, it argues the trial court

erred in dismissing its equal protection claim.        Musial contends the county

discriminated against property owners who filed complaints against the valuation

of their properties by using incorrect property values in calculating their property

taxes for 2009, 2010, and 2011, while it used the correct property values to calculate

the taxes on other properties.

               The Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution provides that “[n]o State shall * * * deny to any person

within its jurisdiction the equal protection of the laws.” Ohio’s Equal Protection
Clause, Article I, Section 2 of the Ohio Constitution, similarly states that “[a]ll

political power is inherent in the people. Government is instituted for their equal

protection and benefit.”

               The guaranty of equal protection prevents the government from

treating people differently under its laws on an arbitrary basis. Harper v. Virginia

State Bd. of Elections, 383 U.S. 663, 681, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966)

(Harlan, J., dissenting.). The equal protection provisions of the Ohio and United

States Constitutions are functionally equivalent and are subject to the same analysis.

State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 11, citing

Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87

Ohio St.3d 55, 59, 717 N.E.2d 286 (1999).

               Musial argues the county arbitrarily treated the class members

differently from other property owners within the county because it used incorrect

values to overvalue their properties while it used the correct values to appraise the

value of other property owners’ properties. Musial asserts “[t]here was no evidence

at trial suggesting any legitimate purpose for the government overcharging Class

Members on their taxes, and neither the trial court nor the government (in its pre-

trial brief) articulated one.” (Appellee’s answer brief at p. 44.) Musial further

contends that “[b]y using the wrong value for Class Members, but using the correct

value for other taxpayers, the County violated Class Members’ equal protection

rights.” (Musial’s answer brief at p. 44.)

               However, we find no evidence that there was any government-

established classification that separated Musial and members of the class from other
property owners, apart from the fact that the class members successfully challenged

the value of their properties for the 2008 tax year, and other property owners within

the county did not. Any supposed “distinction” between the plaintiffs’ class and

other county taxpayers occurred as a result of plaintiffs filing complaints against the

valuation of their properties for the 2008 tax year. As the trial court observed:

         [T]he plaintiff class and the taxpayers not in the class are not similarly
         situated. The members of the class all successfully contested their
         2008 values; those taxpayers not within the plaintiff class did not. So
         the initial sorting of taxpayers into classes was not done by government
         fiat. Moreover, to the extent the plaintiff might argue that all of them
         are real state tax payers [sic] and only those who successfully contested
         their values are being discriminated against by the government, the
         plaintiff has failed to show any intent to discriminate. There is no
         evidence that the county government ignored Musial Office’s reduced
         2008 value when calculating the basis for the 2009 triennial
         reappraisal as a means of punishing the plaintiff for successfully
         exercising its right to contest the value at the board of revision.

(Mar. 23, 2018 judgment entry p. 10.) There was no evidence that the county

treated members of the class differently from other property owners; only that the

class members sought a reduction in valuation of their properties, while other

property owners did not. Therefore, we find no basis for Musial’s equal protection

claim.

                 Musial’s first cross-assignment of error is overruled.

                 The trial court’s judgment is affirmed in part and reversed in part. We

remand the case to the trial court to enter the amount of previously determined

damages on the plaintiffs’ unlawful taxation claim along with previously determined

amount of prejudgment interest.

         It is ordered that appellee recover from appellants costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the common pleas court to carry

this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE


PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
