[Cite as Dean v. Cuyahoga Cty. Fiscal Office, 2019-Ohio-5115.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

BRANDON M. DEAN,                                      :

                Plaintiff-Appellant/                  :
                Cross-Appellee,                                  No. 107824
                                                      :
                 v.
                                                      :
CUYAHOGA COUNTY FISCAL
OFFICE, ET AL.,                                       :

                Defendants-Appellee/                  :
                Cross-Appellant.



                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: December 12, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-18-900581


                                           Appearances:

                Slater & Zurz, L.L.P., and Martin S. Delahunty, III, for
                appellant.

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Mark R. Greenfield, Assistant Prosecuting
                Attorney, for appellees.
FRANK D. CELEBREZZE, JR., J.:

            This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Plaintiff-appellant, Brandon Dean1 (“appellant”), brings

the instant appeal challenging the trial court’s judgment granting defendants-

appellees, Cuyahoga County Fiscal Office and Cuyahoga County Treasurer’s

(collectively “appellees”) motion to dismiss. Appellant argues that the trial court

erred when it granted appellees’ motion to dismiss for failure to state a claim. After

a thorough review of the record and law, this court affirms.

                        I. Factual and Procedural History

             Appellant is the current owner of two residential condominium units

located within the Grande Arcade Condominium complex located at 408 West Saint

Clair Avenue in downtown Cleveland. Appellant owns Unit 322 (assigned Parcel ID

101-09-356) and Unit 323 (assigned Parcel ID 101-09-357). Appellant purchased

these units on November 27, 2017, from Scott Dilyard and Susan Joy for a purchase

price of $285,000 per unit. Dilyard and Joy purchased these units on September 3,

2003, from West Sixth Associates Limited Partnership.

             At the time of the purchase by Dilyard and Joy, each unit consisted of

one bedroom and one bathroom. Sometime after the 2003 purchase, Dilyard and

Joy combined the two apartment units into a single unit consisting of two bedrooms

and two bathrooms. Dilyard and Joy had purchased the two parcels for a total of



      1  Appellant is an attorney licensed to practice law in Ohio. Appellant filed all
actions in the trial court pro se. On appeal, appellant is represented by counsel.
$254,900, and these units were sold to Dilyard and Joy as part of a single

transaction.    The purchase price of each individual unit was recorded in the

Cuyahoga County Recorder’s Office as $254, 900.

               In 2016, appellant attempted to purchase both units but was unable to

obtain the necessary financing for the purchase. Appellant asserts that he was

unable to obtain financing because of a “property tax issue” that was not resolved.

Appellant attributed this “property tax issue” to having two separate parcel numbers

for a single unit. Appellant argued that unless the parcels were combined and a new

parcel number was created, this “property tax issue” would persist. Appellant

asserted that the total purchase price for both units was erroneously associated with

each individual unit. Essentially, appellant asserted he was paying twice the price

for the purchase of a single unit.

               Appellant attempted to remedy the error in order to obtain financing

for the purchase and apparently agreed to handle the “property tax issue” with the

Board of Revision. Appellant had proposed to combine the parcels, creating a single

new parcel number.        Further, appellant sought to use the 2017 appraisal of

$285,000 as the new property value for future taxation purposes for the proposed

new single parcel number.

               A hearing was held on September 5, 2017, at the Board of Revision. At

that time, appellant presented his arguments of what he characterized as the

“property tax issue” and incorrect property valuations to the Board of Revision. On

September 13, 2017, the Board of Revision issued a decision and found Unit 322 to
be valued at $228,700, and Unit 323 to be valued at $228,100. Appellant did not

file an appeal of this decision either to the Board of Tax Appeals or to the trial court.

Appellant then on November 27, 2017, purchased both units for $285,000 each, for

a total purchase price of $570,000 for both units.

             On July 11, 2018, appellant filed a complaint in the Cuyahoga County

Court of Common Pleas asserting (1) a claim against appellees of unjust enrichment,

and (2) seeking a declaratory judgment. Appellant also named four John Does as

defendants. The complaint alleged that appellees were overpaid approximately

$60,000 in property taxes from September 2003 through December 2017.

Appellant sought reimbursement of the overpayment in property taxes through the

unjust enrichment and declaratory judgment claims.

             On September 9, 2018, appellees filed a joint motion to dismiss for

failure to state a claim pursuant to Civ.R. 12(B)(6). Appellees argued that appellant

did not have standing to bring his action because appellant’s complaint failed to

allege that he was responsible for and paid property taxes from 2003 to 2017.

Appellees also argued that Ohio law does not recognize a claim against a political

subdivision for unjust enrichment. Appellees argued that appellant’s action was an

attempt at a mandamus action, and because his complaint did not allege that he paid

property taxes for the timeframe at issue, appellant’s action was barred by the

express language of R.C. 2723.01. R.C. 2723.01 confers jurisdiction to the common

pleas court over actions to recover overpayment of property taxes if “the action is

brought within one year after the taxes or assessment are collected.” Appellees
further argued that appellant’s complaint was barred because he did not allege that

he filed a written protest and notice of intention to sue when the property taxes were

paid as required by R.C. 2723.03.

             On September 14, 2018, appellant filed a response to appellees’ motion

to dismiss, a motion seeking to amend the complaint in which appellant attached a

proposed amended complaint, and a motion for default judgment.2 In appellant’s

motion to amend the complaint, appellant attempted to add a mandamus claim

pursuant to R.C. 2731.05. In his proposed mandamus action, appellant argued that

each unit’s separately listed purchase price of $254,900 was a “clerical error.”

Through this proposed mandamus action, appellant argued that appellees were

required to bring the “clerical error” to the attention of the Board of Revision.

Appellant sought an action in mandamus in the trial court seeking an order from the

trial court directing the Board of Revision to correct this asserted clerical error.

              On September 26, 2018, the trial court issued a journal entry granting

appellees’ joint motion to dismiss and denying appellant’s motion seeking to file an

amended complaint. In its journal entry, the trial court noted the following:

      [Appellant’s] motion to amend the complaint does not address any of
      the jurisdictional deficiencies outlined in [appellees’] motion to
      dismiss. Rather, it merely seeks to add a mandamus action. But the
      essence of the [appellant’s] original complaint was a mandamus action
      to obtain an order against [appellees] to adjust [appellant’s] property
      taxes in accordance with [appellant’s] claims. In substance there is no
      difference between [appellant’s] originally filed complaint and the
      amended one he seeks to put before the court. This court does not have

      2Appellant additionally filed a second response to appellees’ motion to dismiss on
September 18, 2018 reiterating many of his arguments in his September 14, 2018
response to appellees’ motion to dismiss.
      jurisdiction to entertain the claims of [appellant’s] complaint or those
      in his proposed amended complaint. As a result the motion to amend
      the complaint in the precise ways he seeks to amend it is denied.

             Appellant filed a notice of appeal on October 18, 2018. On October 25,

2018, this court, sua sponte, dismissed appellant’s appeal for lack of a final,

appealable order because the trial court failed to enter judgment against the four

John Doe defendants.        Upon remand, appellant filed a motion voluntarily

dismissing the claims against the four John Doe defendants without prejudice

pursuant to Civ.R. 41. On November 20, 2018, the trial court entered a final

judgment.

             On November 20, 2018, appellant filed a motion to reinstate his

appeal, and on November 26, 2018, this court granted appellant’s motion.

             Appellant assigns one error for our review.

      I. The trial court erred in granting [a]ppellees’ [m]otion to [d]ismiss for
      [f]ailure to [s]tate a [c]laim.

Although the trial court granted their motion to dismiss, appellees cross-appealed

and assign three errors for our review.

      I. The trial [c]ourt erred in failing to grant [a]ppellees’ motion to
      dismiss [appellant’s] complaint on the ground[s] that [a]ppellant
      lacked standing.

      II. The trial court erred in failing to grant [a]ppellees’ motion to dismiss
      [a]ppellant’s complaint on the grounds that each of the [c]ounty
      [a]ppellees are immune from suit pursuant to [R.C. 2744.01.]

      III. The trial [c]ourt erred in failing to grant [a]ppellees’ motion to
      dismiss [a]ppellant’s complaint on the grounds that [a]ppellant failed
      to utilize the special statutory procedure mandated pursuant to R.C.
      5715.19.
                                 II. Law and Analysis

              In appellant’s sole assignment of error, he argues that the trial court

erred when it granted appellees’ motion to dismiss.

              A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim assesses

the sufficiency of the complaint. Vetor v. Cliffs Natural Resources, Inc., 8th Dist.

Cuyahoga No. 104023, 2016-Ohio-5846, ¶ 8, citing Assn. for the Defense of

Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 537 N.E.2d 1292 (1989).

A trial court’s review of a Civ.R. 12(B)(6) motion to dismiss is limited to the four

corners of the complaint along with any documents properly attached to or

incorporated within the complaint. Glazer v. Chase Home Fin. L.L.C., 8th Dist.

Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 38.

              It is a long-standing principle that a plaintiff is not required to provide

his or her case within the complaint at the pleading stage. York v. Ohio State Hwy.

Patrol, 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991). “Consequently, as long

as there is a set of facts, consistent with the plaintiff’s complaint, which would allow

the plaintiff to recover, the court may not grant a defendant’s motion to dismiss.”

Id.

              In our review of a Civ.R. 12(B)(6) motion to dismiss, we must accept

the material allegations of the complaint as true and make all reasonable inferences

in favor of the plaintiff. Jenkins v. Cleveland, 8th Dist. Cuyahoga No. 104768, 2017-

Ohio-1054, ¶ 8, citing Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-

4985, 834 N.E.2d 791, ¶ 6. “Furthermore, we must undertake an independent
analysis without deference to the lower court’s decision.” Id., quoting Hendrickson

v. Haven Place, Inc., 8th Dist. Cuyahoga No. 100816, 2014-Ohio-3726, ¶ 12. For a

party to ultimately prevail on the motion, it must appear from the face of the

complaint that the plaintiff can prove no set of facts that would justify a trial court

granting relief. Id., citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio

St.2d 242, 245, 327 N.E.2d 753 (1975).

              In the instant case, appellant argues that the trial court erred in

granting appellees’ motion to dismiss because it viewed his complaint as his “first

request to adjust property taxes.” Appellant’s brief at 6.

              We find no merit to appellant’s arguments, and find that appellant’s

complaint failed to allege a claim upon which relief could have been granted. As

such, we affirm the trial court’s dismissal of appellant’s complaint, and find that the

additional grounds for dismissal of appellant’s complaint asserted in appellees’

cross-appeal are moot.

              As an initial matter, we note that appellant brought this action in the

trial court seeking reimbursement for the alleged overpayment of property taxes

paid from 2003 through 2017.         Appellant’s action was based on the alleged

erroneous property tax valuations of the two units purchased by Dilyard and Joy.

Most importantly, appellant did not own the units until November 27, 2017. As

such, we must determine whether appellant has standing to bring the current action.

      Standing is required to invoke the jurisdiction of the common pleas
      court. Pursuant to Civ.R. 82, the Rules of Civil Procedure do not extend
      the jurisdiction of the courts of this state, and a common pleas court
      cannot substitute a real party in interest for another party if no party
      with standing has invoked its jurisdiction in the first instance.

Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017,

979 N.E.2d 1214, ¶ 38; see also CitiMortgage, Inc. v. Patterson, 2012-Ohio-5894,

984 N.E.2d 392, ¶ 12-18 (8th Dist.).

              In order to demonstrate standing, a plaintiff must show the presence

of three factors: “(1) an injury that is (2) fairly traceable to the defendant’s allegedly

unlawful conduct, and (3) [the injury] is likely to be redressed by the requested

relief.” Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977,

¶ 22. A person with standing has a real interest in the subject matter of the lawsuit.

Schwartzwald at ¶ 22.

               In the instant case, we find that appellant was not the real party in

interest because he did not own the property nor did appellant pay the taxes from

2003 to 2017. As such, appellant lacks standing to bring his unjust enrichment

claim and declaratory judgment action.

               Assuming appellant had actually paid the property taxes, appellant’s

action would nevertheless fail because appellant did not assert that he filed a written

protest and notice of intention to sue as required by R.C. Chapter 2723.               In

particular, R.C. 2723.03 provides, in relevant part:

      Action to enjoin the collection of taxes and assessments must be
      brought against the officer whose duty it is to collect them. * * * If a
      plaintiff in an action to recover taxes or assessments, or both, alleges
      and proves that he [or she] * * *, at the time of paying such taxes or
      assessments, filed a written protest as to the portion sought to be
      recovered, specifying the nature of his claim as to the illegality thereof,
      together with notice of his intention to sue under sections 2723.01 to
      2723.05, inclusive, of the Revised Code, such action shall not be
      dismissed on the ground that the taxes or assessments, sought to be
      recovered, were voluntarily paid.

In the instant case, because appellant failed to assert that he actually paid the

property taxes under protest, he has failed to preserve his right to pursue the

recovery of the alleged overpaid taxes as required by R.C. 2723.03. As such, even if

appellant had paid the property taxes, his complaint is barred by his failure to

comply with the requirements of R.C. 2723.03.

              With regard to appellant’s unjust enrichment claim, this claim fails as

a matter of law because appellees, an agency of the county, is an extension of a

municipality. A municipality cannot be sued for an unjust enrichment claim.

Morton v. Murray, 8th Dist. Cuyahoga No. 106759, 2018-Ohio-5178, ¶ 5. See also

Alpha Plaza Invests., Ltd. v. Cleveland, 2018-Ohio-486, 105 N.E.3d 680, ¶ 6 (8th

Dist.) (noting that equitable claims, such as unjust enrichment, are not actionable

against a municipality).

              Furthermore, even if appellees could be held liable for unjust

enrichment, appellant would have no right to any overpayment of real estate taxes

because the credit for overpayment belongs to the party who made the payment.

Morton at ¶ 6, citing R.C. 5715.22. Such a credit for overpayment is specifically

defined in R.C. 5715.22, which states:

      If after such credit has been made, there remains any balance of such
      overpayment, or if there are no taxes, assessments, or charges due from
      such person, upon application of the person overpaying such taxes the
      auditor shall forthwith draw a warrant on the county treasurer in favor
      of the person who has made such overpayment for the amount of such
      balance.

              Turning next to appellant’s declaratory judgment action, we note that

“[d]eclaratory, injunctive, and mandamus actions are inappropriate to obtain a

reduction of taxable value of real property.” Withintime, Inc., v. Cuyahoga Cty.

Fiscal Officer, 8th Dist. Cuyahoga No. 103482, 2016-Ohio-2944, ¶ 15. As this court

has previously noted,

      “Because Chapters 5715 and 5717 of the Ohio Revised Code establish
      special statutory procedures for testing the valuation and assessment
      of real property for tax purposes, declaratory judgment is an
      inappropriate remedy which should not be granted as an alternative to
      these statutory procedures.” State ex rel. Iris Sales Co. v. Voinovich,
      43 Ohio App.2d 18, 23, 332 N.E.2d 79 (8th Dist.1975). “Declaratory
      relief should not be granted where a special statutory proceeding has
      been provided for that purpose.” Id. See also Schomaeker v. First Natl.
      Bank of Ottawa, 66 Ohio St.2d 304, 421 N.E.2d 530 (1981); Driscoll v.
      Austintown Assocs., 42 Ohio St.2d 263, 328 N.E.2d 395 (1975). “The
      circumvention of these special statutory procedures [set forth in R.C.
      Chapters 5715 and 5719] would nullify the legislative intent to have
      specialized tax questions initially determined by boards and agencies
      specifically designed and created for that purpose.” Iris at 23.
      “‘[A]ctions for declaratory judgment and injunction are inappropriate
      where special statutory proceedings would be bypassed.’” Transky v.
      Ohio Civil Rights Comm., 193 Ohio App.3d 354, 2011-Ohio-1865, 951
      N.E.2d 1106, ¶ 40 (11th Dist.), quoting State ex rel. Albright v.
      Delaware Cty. Court of Common Pleas, 60 Ohio St.3d 40, 42, 572
      N.E.2d 1387 [(1991)].

Id.

              Notwithstanding appellant’s obstacles described above, in support of

appellant’s argument that he has standing and is able to bring an action in the trial

court for the overpayment of property taxes, appellant directs this court’s attention

to Musial Offices, Ltd. v. Cuyahoga, 2014-Ohio-602, 8 N.E.3d 992 (8th Dist.). In
Musial Offices, the plaintiffs filed an original action in common pleas court seeking

to enforce the Board of Revision’s property tax valuation. This court noted that the

Musial Offices plaintiffs were not challenging the Board of Revision’s valuation of

its property. Id. at ¶ 16. Therefore, because appellant did not file an original action

in the common pleas court to enforce a valuation by the Board of Revision, his

reliance on Musial Offices is misplaced.

              R.C. Chapter 5717 sets forth a specific procedure for the appeal of

decisions from a county board of revision. Such an appeal can be made to either the

Board of Tax Appeals, pursuant to R.C. 5717.01, or to the Court of Common Pleas in

which the property is located, pursuant to R.C. 5717.05. Neither chapter authorizes

the trial court to hear a valuation dispute involving property valuations for tax

purposes unless the matter is before the court on an appeal from the Board of

Revision pursuant to R.C. 5717.01 and 5717.05. Thus, the trial court does not have

original jurisdiction to hear property tax valuation cases.

              In the instant case, on September 13, 2017, the Board of Revision

issued a decision finding that Unit 322 was to be valued at $228,700 and Unit 323

was to be valued at $228,100. Included in this decision was a notice that stated that

“[p]ursuant to Ohio Revised Code sections 5717.01 and 5717.05, this decision may

be appealed directly to the Board of Tax Appeals or Court of Common Pleas within

30 days of the date of mailing of this letter.” Appellant’s proper remedy was to file

an appeal pursuant to R.C. 5717.011 either to the Board of Tax Appeals or the Court

of Common Pleas within 30 days of the Board of Revision’s September 13, 2017
decision. Instead, appellant filed an original action in the trial court approximately

ten months later on July 11, 2018.

              To the extent that appellant argues that this matter hinges on a clerical

error, we disagree. Quite simply, appellant is unequivocally attempting to challenge

the tax valuation of property during a timeframe in which he did not own the

property. Assuming appellant did own the property during this timeframe, in order

to obtain the relief in which appellant seeks, he was required to comply with the

statutorily prescribed administrative proceedings for tax valuation disputes.

Because appellant failed to seek relief properly through the administrative

proceedings, the trial court did not err in granting appellees’ motion to dismiss.

              Based on the foregoing analysis, the trial court did not err in granting

appellees’ motion to dismiss the complaint for failure to state a claim pursuant to

Civ.R. 12(B)(6).

              Accordingly, appellant’s sole assignment of error is overruled.

                                     III. Conclusion

              Appellant did not own the property from 2003 to 2017 nor did

appellant make the property tax payments during that timeframe, and thus,

appellant does not have standing to bring any claim for reimbursement from the

alleged overpayment of property taxes. Even assuming appellant did own the

property during the timeframe, equitable claims, such as unjust enrichment, are not

actionable against municipalities, thus appellant’s unjust enrichment claims fail as

a matter of law. Appellant failed to file a timely appeal from the Board of Revision’s
September 13, 2017 decision either to the Board of Tax Appeals or the trial court

pursuant to R.C. 5717.011. Accordingly, the trial court did not err in granting

appellees’ motion to dismiss for failure to state a claim.

              Having addressed appellees’ arguments presented in their cross-

appeal within our analysis of appellant’s sole assignment of error, we find that

appellees’ cross-appeal is moot.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.



FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR
