[Cite as Hamilton v. Mansfield Motorsports Speedway, L.L.C., 2012-Ohio-2446.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BART W. HAMILTON, TREASURER                               JUDGES:
RICHLAND COUNTY, OHIO                                     Hon. W. Scott Gwin, P. J.
                                                          Hon. John W. Wise, J.
        Plaintiff-Appellee                                Hon. Julie A. Edwards, J.

-vs-                                                      Case No. 11 CA 103

MANSFIELD MOTORSPORTS
SPEEDWAY, LLC, et al.,                                    OPINION

        Defendant-Appellant



CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Case No. 10 CV 1287D


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                               May 31, 2012



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JAMES J. MAYER, JR.                                   ROBERT A. FRANCO
PROSECUTING ATTORNEY                                  1007 Lexington Avenue
STEPHEN M. WILDERMUTH                                 Mansfield, Ohio 44907
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 11 CA 103                                                 2

Wise, J.

      {¶1}   Defendant-Appellant Mansfield Motorsports Speedway, LLC appeals the

October 5, 2011, decision of the Court of Common Pleas of Richland County, Ohio,

granting summary judgment in favor of Plaintiff-Appellee Bart W. Hamilton, Treasurer,

Richland County, Ohio, and denying Defendant-Appellant’s motion for default judgment

on its counterclaim.

                         STATEMENT OF THE FACTS AND CASE

      {¶2}   The relevant facts and procedural history are as follows:

      {¶3}   From 2001 through 2004, Appellant, Mansfield Motorsports Speedway,

LLC, made improvements to its real property, including installation and repair of a

grandstand with private viewing boxes, a ticket box office, concessions stand,

restrooms, a flag stand, specialty safety fencing, and repairs to the oval race track

surface.

      {¶4}   Upon completion of the project, the Richland County Auditor, Patrick

Dropsey, taxed the improvements as real property. In September of 2009, the Tax

Commissioner of Ohio, Joseph Testa, assessed use tax on these same improvements.

      {¶5}   It is conceded that Appellant did not challenge the 2004 determination of

the Auditor via R.C. §5715.19, nor did Appellant pursue or challenge the 2009

determination of the Tax Commissioner that the improvements constituted personal

property.

      {¶6}   In July of 2010, the Tax Commissioner filed a use tax lien against

Appellant in the amount of $676,674.31.
Richland County, Case No. 11 CA 103                                                    3


       {¶7}   On September 28, 2010, Appellee Richland County Treasurer filed a

foreclosure complaint against Appellant (Case No. 10-CV-1287D) for non-payment of

real property taxes, which is the subject of this appeal.

       {¶8}   On November 30, 2010, Appellant Mansfield Motorsports Speedway filed

a motion for leave to file an amended answer and counter-claim

       {¶9}   By Entry filed December 6, 2010, the trial court granted leave to Appellant

to file an amended answer and counter-claim.

       {¶10} On February 17, 2011, Appellant filed a complaint for declaratory

judgment and mandamus given the conflicting tax assessments. In that action,

Appellant sought a declaration that the improvements in question constituted personal

property subject to a use tax. In the alternative, Appellant sought a finding that the

improvements were real property not subject to a use tax. Appellant also requested a

writ of mandamus to order the Auditor to reclassify the improvements as personal

property and remove them from county real estate tax rolls or, in the alternative, order

the Auditor to determine if the improvements were real or personal property. See Stark

County Common Pleas Court Case No. 11CV230D.

       {¶11} By Order filed May 2, 2011, upon motion filed by Appellant Mansfield

Motorsports Speedway, the trial court stayed the foreclosure proceedings in the instant

case pending final resolution of the declaratory judgment action.

       {¶12} In the declaratory judgment action, the defendants therein filed motions to

dismiss, claiming the trial court lacked jurisdiction as the assessment of real property

taxes and use taxes should have been appealed to the Board of Revision and the Board

of Tax Appeals, respectively.
Richland County, Case No. 11 CA 103                                                     4


      {¶13} By judgment entry filed June 13, 2011, the trial court dismissed the

declaratory judgment action, finding it lacked jurisdiction to hear the case, Appellant

failed to state a claim upon which relief can be granted, Appellant had or has adequate

legal remedies, and laches barred Appellant's claims.

      {¶14} On July 8, 2011, Appellee Treasurer filed a motion to lift the stay, which

was granted on August 4, 2011,

      {¶15} On August 8, 2011, Appellee Treasurer filed a motion for summary

judgment.

      {¶16} On August 16, 2011, Appellant filed its memorandum in opposition to

Appellee’s motion for summary judgment.

      {¶17} On August 16, 2011, Appellant also filed its own motion for summary

judgment and motion for default judgment on its counterclaim.

      {¶18} On September 19, 2011, the Richland County Auditor filed a motion to

intervene.

      {¶19} On September 19, 2011, Appellee Treasurer filed its response in

opposition to Appellant’s motion for summary and default judgment.

      {¶20} By Judgment Entry filed October 5, 2011, the trial court granted summary

judgment in favor of Plaintiff-Appellee Bart W. Hamilton, Treasurer, Richland County,

Ohio, and denied Defendant-Appellant’s motion for default and summary judgment on

its counterclaim. The trial court also denied the county auditor’s motion to intervene for

failure to comply with Loc.R. 1.04.

      {¶21} This Court, by Opinion dated March 7, 2012, affirmed the trial court’s

dismissal of the declaratory judgment action, finding that not all of the statutory
Richland County, Case No. 11 CA 103                                                   5


administrative procedures to challenge the tax assessments were exhausted and

therefore, a declaratory judgment action was not the appropriate vehicle to challenge

the determinations of the Auditor and the Tax Commissioner on the taxation of the

improvements. This Court did, however, find that there still remain remedies available

where laches may not lie. See State of Ohio, Ex Rel Mansfield Motorsports Speedway,

LLC, et al. v. Patrick W. Dropsey, Richland County Auditor, et al., Richland App. No.

2011 CA 0065, 2012-Ohio-968.

      {¶22} Appellant now appeals the trial court’s October 5, 2011, decision in the

instant foreclosure case, assigning the following assignments of error.

                                 ASSIGNMENTS OF ERROR

      {¶23} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF PLAINTIFF-APPELLEE (AT THE VERY LEAST, A MATERIAL FACT

REMAINS TO BE LITIGATED).

      {¶24} “II. THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS

NO CONSTITUTIONAL VIOLATION IN THIS CASE.

      {¶25} “III. THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANT-

APPELLANT TO PRESENT A DEFENSE THAT THE TAX GIVING RISE TO

PLAINTIFF-APPELLEE'S FORECLOSURE ACTION WAS AN UNCONSTITUTIONAL

ASSESSMENT.

      {¶26} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

CONCLUDING       THAT     NO    RESPONSIVE       PLEADING      WAS        REQUIRED   ON

DEFENDANT-APPELLANT'S            COUNTERCLAIM,          AND      THAT       DEFENDANT-

APPELLANT WAS NOT ENTITLED TO SUMMARY AND DEFAULT JUDGMENT.
Richland County, Case No. 11 CA 103                                                      6


       {¶27} “V. THE TRIAL COURT ERRED IN CONCLUDING THAT COLLATERAL

ESTOPPEL         BARRED      DEFENDANT-APPELLANT'S              COUNTERCLAIM          AND

DEFENSE.

       {¶28} “VI. THE TRIAL COURT ERRED IN CONCLUDING THAT LACHES

BARRED DEFENDANT-APPELLANT'S COUNTERCLAIM AND DEFENSE.”

                                             I., II., III.

       {¶29} In its first three Assignments of Error, Appellant argues that the trial court

erred in granting summary judgment in favor of Appellee. We disagree.

                             “Summary Judgment Standard”

       {¶30} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,

in pertinent part:

       {¶31} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. * * * A summary judgment shall not be

rendered unless it appears from such evidence or stipulation and only therefrom, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in his favor.”
Richland County, Case No. 11 CA 103                                                       7


         {¶32} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed.        The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

         {¶33} It is based upon this standard that we review Appellant’s assignments of

error.

         {¶34} In the case sub judice, the county treasurer initiated the foreclosure action

against Appellant for unpaid real estate taxes.

         {¶35} In its Amended Answer and Counterclaim, Appellant challenged the real

property tax assessment as unconstitutional. Appellant also filed the declaratory

judgment action described above to challenge the tax assessments, seeking a

declaration that the improvements at issue in this case were personal property and thus

subject to use tax, or in the alternative, were real estate improvements and thus not

subject to use tax.
Richland County, Case No. 11 CA 103                                                      8


       {¶36} As this Court stated in the Declaratory Judgment action, at no time prior to

the filing of the foreclosure action did Appellant avail himself of the statutory

administrative procedures to challenge the tax assessments.

       {¶37} The exhaustion of administrative remedies doctrine requires that where an

administrative remedy is available, relief must be sought by exhausting the remedy

before a court will act. Nemazee v. Mt. Sinai Med. Ctr. (1990), Ohio St.3d 109, 56 Ohio

St.3d 109, 564 N.E.2d 477,syllabus.

       {¶38} In the appeal of the declaratory judgment, this Court found that R.C.

§5717.02 governs complaints involving tax assessments by the tax commissioner and

states the following in pertinent part:

       {¶39} "Except as otherwise provided by law, appeals from final determinations

by the tax commissioner of any preliminary, amended, or final tax assessments,

reassessments, valuations, determinations, findings, computations, or orders made by

the commissioner may be taken to the board of tax appeals by the taxpayer, by the

person to whom notice of the tax assessment, reassessment, valuation, determination,

finding, computation, or order by the commissioner is required by law to be given ***.

       {¶40} "Such appeals shall be taken by the filing of a notice of appeal with the

board, and with the tax commissioner if the tax commissioner's action is the subject of

the appeal ***. The notice of appeal shall be filed within sixty days after service of the

notice of the tax assessment, reassessment, valuation, determination, finding,

computation, or order by the commissioner or redetermination by the director has been

given as provided in section 5703.37, 5709.64, 5709.66, or 5733.42 of the Revised

Code."
Richland County, Case No. 11 CA 103                                                            9


       {¶41} This Court went on to find that R.C. §5715.19 governs complaints

involving tax assessments by the county auditor. Subsection (A)(1) states the following

in pertinent part:

       {¶42} "(1) Subject to division (A)(2) of this section, a complaint against any of the

following determinations for the current tax year shall be filed with the county auditor on

or before the thirty-first day of March of the ensuing tax year or the date of closing of the

collection for the first half of real and public utility property taxes for the current tax year,

whichever is later[.]***

       {¶43} "***The county auditor shall present to the county board of revision all

complaints filed with the auditor."

       {¶44} As in the previous appeal, we likewise find the tax foreclosure action is not

the appropriate vehicle to challenge the determinations of the Auditor and the Tax

Commissioner, neither of which are parties to this action, on the taxation of the

improvements.

       {¶45} Appellant’s first three Assignments of Error are overruled.

                                              IV., V., VI.

       {¶46} In its remaining Assignments of Error, Appellant argues that the trial court

erred in determining that no responsive pleading was required on its counterclaim and

in not granting summary and default judgment on same. We disagree.

       {¶47} The trial court, in its summary judgment ruling, found that Appellant was

not entitled to summary and default judgment on its counterclaim as such counterclaim

“simply denies that the tax was assessed against its real property.” As such, the trial

court found that such was “a defense which does not require an answer”.
Richland County, Case No. 11 CA 103                                                         10


       {¶48} Upon review, we find that Appellant, in its counterclaim, alleged that

Appellee Treasurer had been improperly including personal property in determining the

value of its real property for tax purposes and that as a result, it had been over-taxed.

       {¶49} The problem with Appellant’s argument is that the Treasurer, the Appellee

and Plaintiff in this case, is only responsible for collection of taxes. It is the Auditor, not

the Treasurer, whose statutory obligation is to categorize property as real or personal

and to determine how much tax is owed.

       {¶50} Further, as stated above, Appellant in this case failed to appeal his tax

assessment and request a hearing with Richland County Board of Revision, therein

failing to exhaust all of its administrative remedies.

       {¶51} Based on the foregoing, we find that Appellant’s counterclaim failed to

state a claim upon which relief could be granted and that such did not require an

Answer.

       {¶52} Based on the foregoing, we find the trial court did not err in denying

Appellant’s motion for summary and default judgment on its counterclaim.

       {¶53} Appellant’s assignments of error are overruled.

       {¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., concurs.
Edwards, J., dissents.
                                               ___________________________________

                                               ___________________________________

                                               ___________________________________
                                                              JUDGES
JWW/d 0509
Richland County, Case No. 11 CA 103   11
Richland County, Case No. 11 CA 103                                                   12


EDWARDS, J., DISSENTING OPINION

       {¶55} I respectfully dissent from the analysis and disposition of this case by the

majority.

       {¶56} In State of Ohio, Ex Rel Mansfield Motorsport Speedway, LLC, et al. v.

Patrick W. Dropsey, Richland County Auditor, et al., Richland App. No. 2011 CA 0065,

2012-Ohio-968, I wrote a dissenting opinion stating that the trial court should have

allowed the declaratory judgment action to proceed as to the years in which the

appellant was double taxed.

       {¶57} Therefore, until such declaratory judgment action occurs and has an end

result, a grant of summary judgment on the foreclosure action for real estate taxes is

premature.




                         ____________________________________

                                    Judge Julie A. Edwards




JAE/rmn
Richland County, Case No. 11 CA 103                                            13


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




BART W. HAMILTON, TREASURER               ;
RICHLAND COUNTY, OHIO                     :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MANSFIELD MOTORSPORTS                     :
SPEEDWAY, LLC, et al.,                    :
                                          :
       Defendant-Appellant                :         Case No. 11 CA 103




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
