[Cite as Wright v. Fleming, 2014-Ohio-2050.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99882


       JEANNET WRIGHT,1 AS ACTING TREASURER

                                                     PLAINTIFF-APPELLEE

                                               vs.

                         JIMMIE L. FLEMING, ET AL.
                                                     DEFENDANTS-APPELLANTS



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-07-619692

        BEFORE: Stewart, J., Boyle, A.J., and Keough, J.
        RELEASED AND JOURNALIZED: May 15, 2014


       The original caption of this case was James Rokakis, as Treasurer v. Jimmie L. Fleming, et
        1


al. In accordance with App.R. 29(C), the court substitutes Jeannet Wright, the acting Treasurer of
Cuyahoga County.
ATTORNEY FOR APPELLANT

Samuel R. Smith, II
75 Public Square, Suite 1111
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Michael A. Kenny, Jr.
          Anthony J. Giunta, Jr.
          Adam D. Jutte
          Colleen Majeski
          Judith Miles
          Gregory B. Rowinski
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} This case has a long and complicated procedural history arising from a

property encumbered with delinquent property taxes that was eventually forfeited to the

state. The owner of the property failed to follow a monthly payment agreement executed

with the county treasurer in order to address the tax arrears. As a result of the owner’s

default, the property was forfeited and eventually sold.

       {¶2} In his sole assignment of error on appeal, appellant argues that the trial court

erred in denying his motion to stay the execution of sale where the contractual agreement

between the parties prevented the property from being sold at a sheriff’s sale. For the

reasons that follow, we affirm the decision of the trial court.

       {¶3} On March 26, 2007, James Rokakis, as treasurer of Cuyahoga County, filed a

complaint in tax foreclosure against a property located on East 146th Street in Cleveland

and owned by Jimmie Fleming. The amount of taxes, assessments, penalties, and interest

on the delinquent land tax certificate attached to the complaint was $18,215.26.

       {¶4} In May 2007, Fleming and the treasurer executed an agreement entitled

Delinquent/Unpaid Tax Contract where Fleming agreed to pay $303.59 a month in order

to satisfy the debt owed on the property. The terms of the contract stated that if Fleming

defaulted on the agreement, the balance remaining on the full amount would become

immediately due. The agreement also specifically stated that if Fleming defaulted on his

payments, the property would be scheduled for sheriff’s sale.
       {¶5} Fleming defaulted on his payments and a tax hearing was held by a magistrate

on January 31, 2008. The magistrate issued a decision in foreclosure in favor of the

treasurer. This decision was filed on February 1, 2008. Fleming did not object to these

findings, and on March 7, 2008, the decision was adopted by the trial court.

       {¶6} The county sheriff was ordered to offer the property for sale in March 2008

for a date of sale in May 2008. However, between May 2008 and September 2011, the

property was not sold due to various motions to stay the sale of the property granted by

the court. Fleming passed away on March 10, 2009. His brother, Gregory Fleming, as

administrator of Jimmie’s estate, continued to file motions to prevent the sale and transfer

of ownership of the property arguing that the contract signed by Jimmie and the treasurer

prohibited such a transfer.2

       {¶7} In June 2012, the property was again ordered for sale; however, the order was

returned due to lack of bidders at the auction. The property was thereafter forfeited to

the state, and the order was journalized on July 11, 2012.

       {¶8} In April 2013, the administrator of Fleming’s estate again filed a motion to

stay execution of sale without bond. The trial court denied this motion as moot because

the property had been forfeited to the state. On May 8, 2013, the administrator filed a

notice of appeal and a motion to stay the transfer of the deed with the trial court and with

the court of appeals. The motion to stay the transfer of the deed was filed without


         The record does not contain a suggestion of death as required by Civ.R. 25(E), nor does the
       2


record indicate that Fleming’s estate had been substituted as a party under Civ.R. 25(A).
posting bond. We dismissed the appeal sua sponte for failure to file a record. On July

11, 2013, the administrator filed a motion for leave to amend the praecipe that was treated

by this court as a motion for reconsideration and was granted, thus reinstating this appeal.

       {¶9} On appeal, the administrator argues that the trial court should have granted

his April 2013 motion to stay the execution of sale of the property on two grounds: first,

he claims that the terms of the agreement executed between Fleming and the treasurer

prevented the sale and, secondly, he argues that the trial court interfered with bankruptcy

proceedings by failing to grant the stay.

       {¶10} We find appellant’s arguments to be without merit for several reasons:

primarily, we agree with the trial court’s decision that this case is moot. Once the

property was forfeited to the state in June 2012, the trial court was unable to restrict the

state from further transfer of the property. Additionally, when appellant filed his notice

of appeal and motion to stay, he again failed to post a bond and the property was sold.

       {¶11} As a general principle, an appeal is moot if it is impossible for the appellate

court to grant any effectual relief . See Equibank v. Rivera, 8th Dist. Cuyahoga No.

72224, 1998 Ohio App. LEXIS 185 (Jan. 22, 1998).            All ownership interest in this

property was lawfully transferred to the state in 2012 and from the state to a third-party

purchaser in September 2013.       Since someone else is now the lawful owner of the

property, there is no remedy we are able to provide appellant if he were to prevail.

       {¶12} Even if we did not find this appeal to be moot, we note that any arguments

based on error of the trial court’s decision are forfeited on appeal because Fleming failed
to comply with Civ.R. 53 by not objecting to the magistrate’s findings after the January

2008 tax hearing. Civ.R. 53(D)(3)(b)(iv) provides:

      Except for a claim of plain error, a party shall not assign as error on appeal
      the court’s adoption of any factual finding or legal conclusion, whether or
      not specifically designated as a finding of fact or conclusion of law under
      Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
      conclusion as required by Civ.R. 53(D)(3)(b).

Under Civ.R. 53, parties have an affirmative duty to submit timely, specific, written

objections to the trial court, identifying any error of fact or law in the magistrate’s

decision.    Huntington Natl. Bank v. Blount, 8th Dist. Cuyahoga No. 98514,

2013-Ohio-3128, ¶ 11. Because Fleming did not object to the magistrate’s findings, he

has waived any claimed error.

      {¶13} As a final note, the appellant’s arguments that the treasurer violated the

terms of the delinquent tax contract and interfered with bankruptcy proceedings would be

equally unavailing.   Fleming defaulted on the payments, thus entitling sale of the

property. Fleming’s last payment pursuant to the terms of the agreement was on January

18, 2008. When he failed to make a timely subsequent payment, his account went into

default and the property was immediately subject to foreclosure. With regard to the

bankruptcy stay, a review of the record demonstrates that the trial court took no action in

derogation to bankruptcy proceedings. Fleming filed a petition in bankruptcy on May 2,

2008. That case was dismissed on September 29, 2008 and closed on January 16, 2009.

In February 5, 2009, he filed another petition, which was dismissed on April 24, 2009 and
closed on May 17, 2009. Fleming’s motions for stay filed during the pendency of these

bankruptcy proceedings were granted by the trial court.

      {¶14} Judgment affirmed.

      It is ordered that appellee recover of appellant his costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
