[Cite as Tax Ease Ohio, L.L.C. v. Dry Creek Crushed Gravel Co., 2019-Ohio-2924.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 TAX EASE OHIO, LLC                                    JUDGES:
                                                       Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                            Hon. Craig R. Baldwin, J.
                                                       Hon. Earle E. Wise, Jr., J.
 -vs-
                                                       Case No. 19-CA-7
 DRY CREEK CRUSHED GRAVEL
 COMPANY, aka DRY CREEK CRUSHED
 GRAVEL CO.

         Defendant-Appellant                           O P I N IO N

 and

 THE HUNTINGTON NATIONAL BANK, A
 NATIONAL BANKING ASSOCIATION,
 et al.

         Defendants

 CHARACTER OF PROCEEDINGS:                             Appeal from the Licking County Court of
                                                       Common Pleas, Case No. 2018-CV-
                                                       00954

 JUDGMENT:                                             Affirmed

 DATE OF JUDGMENT ENTRY:                               July 16, 2019

 APPEARANCES:

 For Plaintiff-Appellee                                For Defendant-Appellant

 JAMES R. COOPER                                       DAVID T. BRADY
 Morrow, Gordon & Byrd, Ltd.                           SUZANNE M. GODENSWAGER
 33 W. Main Street                                     ANDREW M. TOMKO
 P.O. Box 4190                                         AUSTIN B. BARNES, III
 Newark, Ohio 43058-4190                               BRIAN S. GOZELANCZYK
                                                       Sandhu Law Group, LLC
                                                       1213 Prospect Avenue, Suite 300
                                                       Cleveland, Ohio 44115
Licking County, Case No. 19-CA-7                                                          2

Hoffman, P.J.
          {¶1}    Defendant-appellant Dry Creek Crushed Gravel Company, aka Dry Creek

Crushed Gravel Co. (“Dry Creek”), appeals the January 9, 2019 Judgment Entry and

Decree of Foreclosure entered by the Licking County Court of Common Pleas, which

granted summary judgment in favor of plaintiff-appellee Tax Ease Ohio, LLC (“Tax Ease”)

on its tax certificate foreclosure action.

                                     STATEMENT OF THE CASE

          {¶2}    On August 31, 2018, Tax Ease filed a complaint in the Licking County Court

of Common Pleas, naming Dry Creek, The Huntington National Bank (“Huntington”),

Richard C. Kennedy, dba Kennedy Outdoor Advertising (“Kennedy”), and Licking County

Treasurer as defendants. Tax Ease sought to foreclose on tax certificates relating to

Permanent Parcel No. 079-296118-00.000, commonly known as 2097 Mount Vernon

Road, Newark, Ohio, which was owned by Dry Creek. Tax Ease had purchased the tax

certificates from the Licking County Treasurer. Tax Ease attached to its complaint copies

of the two tax certificates, the Notice of Intent to Foreclose, and the preliminary judicial

report.

          {¶3}    Service was perfected on all of the defendants. Dry Creek and the Licking

County Treasurer filed timely answers to the complaint. Neither Huntington nor Kennedy

filed an answer. On November 28, 2018, Tax Ease filed a motion for summary judgment

against Dry Creek as well as a motion for default judgment against Huntington and

Kennedy.         Dry Creek filed a memorandum contra Tax Ease’s motion for summary

judgment on January 7, 2019. Therein, Dry Creek asserted genuine issues of material

fact existed as to the amount due as well as to the applicable interest rates, the

reasonableness of the attorney fees sought, and the amount of the assessments,
Licking County, Case No. 19-CA-7                                                        3


penalties, and charges which were not set forth in the tax certificates. Dry Creek did not

provide any evidence to support its position.

       {¶4}   Via Judgment Entry and Decree of Foreclosure filed January 9, 2019, the

trial court granted summary judgment in favor of Tax Ease. The trial court found Tax

Ease was the vested holder of the two identified tax certificates with specific amounts

due; the tax certificates constituted a first and valid lien on the property; and taxes,

assessments, penalties, and interest may be due to the Licking County Treasurer. The

trial court ordered Dry Creek’s property to be sold.

       {¶5}   It is from this judgment entry Dry Creek appeals, raising the following

assignments of error:



              I. THE TRIAL COURT ERRED BY GRANTING SUMMARY

       JUDGMENT TO PLAINTIFF-APPELLEE, TAX EASE OHIO, LLC, WHEN

       THERE WERE GENUINE ISSUES OF MATERIAL FACT FOR TRIAL.

              II. THE TRIAL COURT ERRED BY GRANTING SUMMARY

       JUDGMENT TO PLAINTIFF-APPELLEE, TAX EASE OHIO, LLC, WHEN

       REAL ESTATE WAS INCLUDED IN ITS JUDGMENT ENTRY UPON

       WHICH SALE WAS ORDERED AND UPON WHICH A TAX CERTIFICATE

       DID NOT EXIST, THERE WAS NO LIEN IN FAVOR OF PLAINTIFF-

       APPELLEE, AND WHICH WAS THE SUBJECT OF REDEMPTION BY

       DEFENDANT-APPELLANT IN A PREVIOUS CASE BROUGHT BY THE

       TREASURER OF LICKING COUNTY, OHIO.
Licking County, Case No. 19-CA-7                                                             4


                                 STANDARD OF REVIEW

       {¶6}   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., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this

Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

       {¶7}   Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

       {¶8}   It is well established the party seeking summary judgment bears the burden

of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting

summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d

264 (1996): “ * * * a party seeking summary judgment, on the ground that the nonmoving

party cannot prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate the absence

of a genuine issue of material fact on the essential element(s) of the nonmoving party's

claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by

making a conclusory assertion the nonmoving party has no evidence to prove its case.
Licking County, Case No. 19-CA-7                                                             5


Rather, the moving party must be able to specifically point to some evidence of the type

listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no

evidence to support the nonmoving party's claims. If the moving party fails to satisfy its

initial burden, the motion for summary judgment must be denied. However, if the moving

party has satisfied its initial burden, the nonmoving party then has a reciprocal burden

outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial

and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be

entered against the nonmoving party.” The record on summary judgment must be viewed

in the light most favorable to the opposing party. Williams v. First United Church of Christ,

37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

                                                 I, II

       {¶9}   For ease of discussion, we shall address Dry Creek’s assignments of error

together. In its first assignment of error, Dry Creek argues the trial court erred in granting

summary judgment to Tax Ease as genuine issues of material fact remained to be

litigated. In its second assignment of error, Dry Creek maintains the trial court erred in

granting summary judgment in favor of Tax Ease and ordering a sale of the property.

       {¶10} Dry Creek submits it “raised the material issue of the account balances of

the taxes, interest, and penalties associated with Permanent Parcel No. 079-296118-

00.000” in its memorandum contra Tax Ease’s motion for summary judgment . Brief of

Appellant at 5. Dry Creek concludes, “As such, there were genuine issues of material

fact and the motion for summary judgment of [Tax Ease] should not have been granted.”

Id. We disagree.

       {¶11} R.C. 5721.37(F) provides, in relevant part:
Licking County, Case No. 19-CA-7                                                           6


              * * * The tax certificate purchased by the certificate holder is

       presumptive evidence in all courts and boards of revision and in all

       proceedings, including, without limitation, at the trial of the foreclosure

       action, of the amount and validity of the taxes, assessments, charges,

       penalties by the court and added to such principal amount, and interest

       appearing due and unpaid and of their nonpayment. (Emphasis added).



       {¶12} In her Affidavit in support of Tax Ease’s motion for summary judgment, Jade

Vowels, a servicing manager with Cazenovia Creek Investment Management, LLC, which

is a servicer for Tax Ease, averred Tax Ease is the holder and owner of the tax certificates,

the copies of the tax certificates attached to the complaint were true and accurate copies

of the same, and the tax certificates were unredeemed and due. The tax certificates

purchased by Tax Ease were presumptive evidence, pursuant to R.C. 5721.37(F), “of the

amount and validity of the taxes, assessments, charges, penalties by the court and added

to such principal amount, and interest appearing due and unpaid and of their

nonpayment.” We find Tax Ease met its burden; therefore, Dry Creek was required to

present evidence that some issue of material fact remained to be litigated. We find Dry

Creek failed to offer evidence to establish it had redeemed the tax certificates or present

any evidentiary material to rebut the presumptive validity of the certificates, but merely

set forth self-serving allegations in its memorandum contra to Tax Ease’s motion for

summary judgment.

       {¶13} Dry Creek further contends the trial court did not have jurisdiction to order

the sale because a tax certificate relative to Parcels One and Two of Tract Two did not
Licking County, Case No. 19-CA-7                                                           7


exist; there was no lien on the property; and Parcels One and Two of Tract Two were the

subject of redemption in Licking County Court of Common Pleas Case No. 2017CV00511.

       {¶14} “Subject-matter jurisdiction of a court connotes the power to hear and

decide a case upon its merits” and “defines the competency of a court to render a valid

judgment in a particular action.” Cheap Escape Co. v. Haddox, L.L.C., 120 Ohio St.3d

493, 2008-Ohio-6323, ¶ 6, 900 N.E.2d 601, quoting Morrison v. Steiner, 32 Ohio St. 2d

86, 87, 290 N.E.2d 841 (1972). Because a court without subject-matter jurisdiction lacks

the power to adjudicate the merits of a case, a party may challenge jurisdiction at any

time during the proceedings. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11,

806 N.E.2d 992. The Supreme Court of Ohio has “long held that actions in foreclosure

are within the subject-matter jurisdiction of a court of common pleas.” Bank of Am., N.A.

v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 20.

       {¶15} We find the trial court had subject matter jurisdiction to adjudicate the merits

of this case. In support of its assertion the trial court lacked jurisdiction, Dry Creek

attached to its Brief to this Court the September 25, 2018 Judgment Entry Tax

Foreclosure from Licking County Common Pleas Case No. 2017CV00511, and the Notice

of Sale associated therewith. Dry Creek did not offer this evidence before the trial court.

Because an appellate court cannot consider evidence outside of the record created

before the trial court, we are precluded from considering the rulings from another case.

Columbus v. Brown, Franklin App. No. 05AP-344, 2005-Ohio-6102, at ¶ 9, citing State v.

Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus. Dry Creek did not

timely introduce this evidence to rebut the trial court’s decision prior to the trial court’s

grant of summary judgment to Tax Ease.
Licking County, Case No. 19-CA-7                                                    8


      {¶16} Based upon the foregoing, we find the trial court did not err in granting

summary judgment in favor of Tax Ease and ordering a sale of the property.

      {¶17} Dry Creek’s first and second assignment of error are overruled.

      {¶18} The judgment of the Licking County Court of Common Pleas is affirmed.




By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
