[Cite as Cooper v. Westerville, 2013-Ohio-4652.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



TIM H. COOPER                                         JUDGES:
                                                      Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                           Hon. John W. Wise, J.
                                                      Hon. Patricia A. Delaney, J.
-vs-
                                                      Case No. 13 CAE 02 0011
CITY OF WESTERVILLE, OHIO, et al.

        Defendants-Appellees                          OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from the Court of Common
                                                   Pleas, Case No. 11 CVH 06 0735

JUDGMENT:                                          Dismissed


DATE OF JUDGMENT ENTRY:                            October 21, 2013


APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellant Treasurer

AMBROSE MOSES, III                                 CAROL HAMILTON O'BRIEN
1900 Polaris Parkway, Suite 450                    PROSECUTING ATTORNEY
Columbus, Ohio 43240                               CHRISTOPHER D. BETTS
                                                   ASSISTANT PROSECUTOR
                                                   140 North Sandusky Street
                                                   3rd Floor
                                                   Delaware, Ohio 43015

                                                   For Defendant-Appellant Commercial

                                                   SEAN A. MARTIN
                                                   BECK & MARTIN
                                                   102 East Findlay Street
                                                   Carey, Ohio 43316
Delaware County, Case No. 13 CAE 02 0011                                                2

Wise, J.

      {¶1}   Appellant Tim H. Cooper appeals the decision of the Court of Common

Pleas, Delaware County, which granted summary judgment and/or judgment in favor of

Appellee Commercial Savings Bank and Appellee Delaware County Treasurer in an

action by appellant challenging certain real estate tax assessments. The relevant facts

leading to this appeal are as follows.

      {¶2}   In 2005, Appellant Cooper purchased two commercial real estate parcels

(hereinafter collectively “the property”) located on Office Parkway in Westerville,

Delaware County, Ohio. The first parcel is identified as number 317-334-03-004-502,

located at 612 Office Parkway, Unit A, Westerville, Ohio. The second parcel is

identified as number 317-334-03-004-503, located at 612 Office Parkway, Unit B,

Westerville, Ohio.

      {¶3}   Appellant’s purchase was secured by a mortgage through Appellee

Commercial Savings Bank. Appellant maintains that one of the incentives that originally

persuaded him to enter the real estate purchase contract was that a portion of the real

estate taxes would be abated or exempted. Appellant thereafter owned the property

from 2005 until 2013.

      {¶4}   On June 23, 2011, appellant filed a civil complaint in the Delaware County

Court of Common Pleas against the City of Westerville, Office Park LLC (both as an

Ohio and a Delaware limited liability company), Appellee Commercial Savings Bank,

and others, alleging deprivation of his constitutional rights under 42 U.S.C. 1983, fraud,

breach of contract, promissory estoppel, tortious interference with contract, and

misrepresentation. According to appellant, this followed events in 2010 wherein the
Delaware County, Case No. 13 CAE 02 0011                                                  3


City of Westerville represented to the Delaware County Auditor that appellant was

delinquent on “payment in lieu of tax” (PILOT) fee payments, that his tax exemption

was revoked, and that the unpaid PILOT fees were to be assessed as delinquent real

estate taxes against the property.

        {¶5}   On July 18, 2011, appellant filed an amended complaint against the City of

Westerville, Office Park LLC (both as an Ohio and a Delaware limited liability

company), Appellee Commercial Savings Bank, and others, alleging deprivation of his

constitutional rights under 42 U.S.C. 1983, fraud, breach of contract, promissory

estoppel, tortious interference with contract, misrepresentation, and abuse of process.

        {¶6}   Neither the Delaware County Treasurer nor the Delaware County Auditor

were named as parties in the original complaint or amended complaint. On December

15, 2011, Appellee Delaware County Treasurer was granted leave to intervene in the

case.

        {¶7}   On March 14, 2012, appellant filed a second amended complaint against

the City of Westerville, Office Park LLC (both as an Ohio and a Delaware limited

liability company), Appellee Commercial Savings Bank, and Attorney Charles L.

Bartholomew, alleging deprivation of his constitutional rights (citing Article I of the Ohio

Constitution), negligence, fraud, breach of contract, promissory estoppel, tortious

interference with contract, misrepresentation, abuse of process, civil conspiracy, and

mutual mistake.

        {¶8}   Following trial court rulings in regard to the various responsive pleadings

and counterclaims, which we need not recite herein, the following claims remained as

of April 18, 2012:
Delaware County, Case No. 13 CAE 02 0011                                              4


      {¶9}   (1) Appellant’s claims against Appellee Commercial Savings Bank under

the second amended complaint; (2) Appellee Commercial Savings Bank’s counterclaim

against appellant filed November 22, 2011, based on the note and mortgage; and (3)

Appellee Delaware County Treasurer’s counterclaim against appellant filed December

20, 2011, based on alleged taxes, interest, and penalties.

      {¶10} On August 6, 2012, Appellee Commercial Savings Bank filed a motion for

summary judgment. On September 6, 2012, appellant dismissed all of his claims

against Appellee Commercial Savings Bank; however, the bank’s counterclaim

remained. Via a judgment entry filed January 23, 2013, the trial court granted summary

judgment in favor of Appellee Commercial Savings Bank on said counterclaim. This left

only Appellee Delaware County Treasurer’s counterclaim against appellant, which the

court had previously scheduled for trial.

      {¶11} On January 23, 2013, following a bench trial, the trial court issued a

judgment entry in favor of Appellee Delaware County Treasurer on his counterclaim,

granting foreclosure on a lien for real estate taxes and the current and delinquent real

estate taxes due in regard to the property at issue.

      {¶12} Appellant filed a notice of appeal on February 21, 2013. He herein raises

the following three Assignments of Error:

      {¶13} “I. WHERE THE CITY OF WESTERVILLE, OHIO ORDERED COOPER

TO GIVE THE CITY A PAYMENT IN LIEU OF TAX (PILOT FEE) PURSUANT TO A

R.C. 3735.671 COMMUNITY REINVESTMENT AREA AGREEMENT TO WHICH

COOPER WAS NOT A PARTY; THEN FAILED TO PROVIDE COOPER WITH

NOTICE REQUIRED BY R.C. 3735.68 THAT THE TAX EXEMPTION WAS
Delaware County, Case No. 13 CAE 02 0011                         5


REVOKED; THEN FAILED TO GIVE COOPER NOTICE OF HIS R.C. 3735.70

APPEAL RIGHTS; THEN CERTIFIED TO THE DELAWARE COUNTY AUDITOR

THAT THE UNPAID PILOT FEES WERE NOW A DELINQUENT TAX TO BE

ASSESSED UPON COOPER'S REAL ESTATE IMPROVEMENTS, IT WAS A DENIAL

OF DUE PROCESS AND ERROR FOR THE COURT OF COMMON PLEAS FOR

DELAWARE COUNTY TO ENTER A JUDGMENT IN FAVOR OF THE COUNTY

TREASURER AGAINST COOPER FOR THAT PORTION OF THE ALLEGED UNPAID

TAXES THAT BEGAN AS A PILOT FEE PURSUANT TO A R.C. 3735.671

COMMUNITY REINVESTMENT AREA AGREEMENT TO WHICH COOPER WAS

NOT A PARTY.

     {¶14} “II. WHERE THE PROPERTY OWNER CHALLENGES THE VALIDITY

OF AN ALLEGED REAL ESTATE TAX OBLIGATION THAT PURPORTEDLY AROSE

FROM A R.C. 3735.671 COMMUNITY REINVESTMENT AREA AGREEMENT TO

WHICH THE PROPERTY OWNER WAS NOT A PARTY, THE TRIAL COURT ERRED

AND DENIED THE PROPERTY OWNER DUE PROCESS WHEN THE COURT SUA

SPONTE JOINED THE COUNTY TREASURER INSTEAD OF THE COUNTY

AUDITOR AS A PARTY IN THE CASE.

     {¶15} “III. WHERE A NOTE IS AMBIGUOUS BECAUSE IT CONTAINS TWO

DIFFERENT LOAN AMOUNTS AND THE PARTIES WERE MUTUALLY MISTAKEN

AS TO THE AMOUNT OF THE LOAN TRANSACTION, THE TRIAL COURT ERRED

IN GRANTING DEFENDANT BANK'S MOTION FOR SUMMARY JUDGMENT

BECAUSE THERE EXISTS A GENUINE ISSUE AS TO A MATERIAL FACT AND THE

BANK IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.”
Delaware County, Case No. 13 CAE 02 0011                                                 6


                                            I., II., III.

      {¶16} In his Assignments of Error, appellant argues the trial court committed

reversible error in allowing the intervention of and awarding judgment in favor of the

Delaware County Treasurer, and in granting summary judgment in favor of Commercial

Savings Bank on its counterclaim.

      {¶17} As an initial matter, we note appellees assert in their briefs that on April 1,

2013, before appellant filed his brief in this matter, appellant sold the property at issue

(prior to the scheduled date for a sheriff sale under the foreclosure) and the real estate

taxes were paid in full as a result. Furthermore, the judgment in favor of the bank

against appellant was fully satisfied. Appellant did not seek a stay of the judgment and

did not post bond in regard to any potential stay. Appellant has not filed a reply brief in

this appeal challenging the veracity of the aforesaid recitation of these post-judgment

events. Generally, “a satisfaction of judgment renders an appeal from that judgment

moot.” Spencer v. Kiowa Developing Co., Inc. (Jan. 5, 2000), Summit App. Nos. 19524,

19532, quoting Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245. We have held, in

the related context of an order confirming a judicial sale, that “[w]ithout a stay order

and/or bond, the property can legally be transferred to the purchasers and the

proceeds can be used to satisfy the debts against the property.” Meadow Wind Health

Care Center, Inc. v. McInnis, 5th Dist. Stark No. 2002CA00319, 2003-Ohio-979, ¶ 7.
Delaware County, Case No. 13 CAE 02 0011                                            7


      {¶18} Upon review, we find the issues raised in Appellant’s First, Second, and

Third Assignments of Error are now moot, and we are thus compelled to dismiss the

present appeal.

      {¶19} For the reasons stated in the foregoing, the appeal of the decision of the

Court of Common Pleas, Delaware County, Ohio, is dismissed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.



                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY

JWW/d 0911
Delaware County, Case No. 13 CAE 02 0011                                           8


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




TIM H. COOPER                             :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CITY OF WESTERVILLE, OHIO, et al.         :
                                          :
       Defendants-Appellees               :         Case No. 13 CAE 02 0011




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

of the judgment of the Court of Common Pleas of Delaware County, Ohio, is dismissed.

       Costs assessed to appellant.




                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                           HON. PATRICIA A. DELANEY
