[Cite as JTS Capital 1, L.L.C. v. Lake Cottage Communities, Ltd., 2017-Ohio-1437.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

JTS CAPITAL 1 LLC                                          JUDGES:
                                                           Hon. W. Scott Gwin, P.J.
        Plaintiff                                          Hon. William B. Hoffman, J.
                                                           Hon. Craig R. Baldwin, J.
-vs-
                                                           Case No. 16-CA-00010
LAKE COTTAGE COMMUNITIES LTD,
ET AL.
(JAMES HARRIS, APPELLANT)                                  OPINION
(PERRY COUNTY TREASURER,
APPELLEE)

        Defendants

-vs-

MARTIN FINTA, ET AL.

        Third Party Defendants




CHARACTER OF PROCEEDING:                               Appeal from the Perry County Common
                                                       Pleas Court, Case No. 14-CV-00183


JUDGMENT:                                              Affirmed

DATE OF JUDGMENT ENTRY:                                April 17, 2017

APPEARANCES:

For Appellant                                          For Appellee
                                                       Perry County Treasurer

JAMES HARRIS, PRO SE                                   CINDY M. O'NEIL
67 South Parkview Avenue                               Asst. Perry County Prosecuting Attorney
Columbus, Ohio 43209                                   111 North High Street, P.O. Box 569
                                                       New Lexington, Ohio 43764
Perry County, Case No. 16-CA-00010                                                        2

Hoffman, J.



       {¶1}   Defendant/Counterclaimant-Appellant James Harris appeals that portion of

the August 31, 2016 Judgment Entry entered by the Perry County Court of Common Pleas

granting him lien priority, except as to all liens of the Appellee Perry County Treasurer.1

                                 STATEMENT OF THE CASE2

       {¶2}   On July 2, 2014, Park National Bank filed a complaint in foreclosure, which

complaint named the Perry County Treasurer, Appellant and Suburban Steel Supply

Company LLC as lienholders against current and former owners of the property.

       {¶3}   On July 18, 2014, the Perry County Treasurer answered the complaint of

Park National Bank stating,



              1. *** the Perry Count Treasurer does affirmatively assert a lien of

       first priority on the subject premises for accrued real estate taxes.

              WHEREFORE, Defendant Perry County Treasurer demands that the

       real estate tax lien of Perry County be protected, and for such other and

       further relief to which she may be entitled.




1
 Appellant does not challenge the resolution of other claims alleged before the trial court.
2
 A full rendition of the underlying facts and procedural history is unnecessary for
resolution of this appeal. Therefore, we have summarily outlined the procedural history
before the trial court relevant to the appeal.
Perry County, Case No. 16-CA-00010                                                            3


       {¶4}   On August 1, 2014, Appellant filed an answer to Park National Bank’s

complaint, alleging counterclaims, cross-claims and third-party claims seeking a

determination of liens, priority, levy and foreclosure.3

       {¶5}   Appellant’s pleading states,



              25. Defendant admits that he has an interest in the Property, by virtue

       of a Consent Judgment in the Perry County Court of Common Pleas

       judgment in case #11-CV-00379, lis pendens,***through which the

       Defendant James Harris has currently levied the property in question, and

       subjected the equity interest of the co-Defendants (Lake Cottage

       Communities, Ltd., et al) to sale (subject to the claimed liens of the Perry

       County Treasurer, or other lienholder claimants not part of the execution).



       {¶6}   Appellant’s counterclaim for declaratory judgment states at Paragraph 84,

“Defendant Harris’s [sic] Lien is the first and superior lien on the Property, after that of the

Perry County Treasurer.”

       {¶7}   Appellant’s answer prays the trial court determine title, quiet title and order

foreclosure, issuing, “h. An order determining that the Defendant Harris’ Consent

Judgment Lien is the prior, first and best lien (after the Perry County Treasurer, if any)”




3
 Appellant’s answer, counterclaims, cross-claims and third party complaint did not state
claims against the Perry County Treasurer. Rather, Appellant conceded his lien would
be subject to the first and superior lien of the Perry County Treasurer.
Perry County, Case No. 16-CA-00010                                                         4


       {¶8}   On August 10, 2015, Appellant filed an amended answer, counterclaims,

cross claims, and third party complaint4, stating in part,



              19. Defendant admits that there may be a claim for property taxes,

       but is uncertain at this time of the amount or legality of any taxes or

       delinquent taxes.

              ***

              25. Defendant admits that he has an interest in the Property, by virtue

       of Consent Judgment in the Perry County Court of Common Pleas ***

       through which the Defendant James Harris has currently levied the Property

       in question, and subject the equity interest of the co-Defendants (Lake

       Cottage, Ltd., et al.) to sale (subject to the claimed liens of the Perry County

       Treasurer, or other lienholder claimants not part of the execution.)***



       {¶9}   Appellant’s claim for declaratory judgment states, “83. Defendant’s Harris’s

[sic] Lien is the first and superior lien on the Property, after that of the Perry County

Treasurer.”

       {¶10} Appellant’s prayer for relief requests, “h. An order determining that the

Defendant Harris’s [sic] Consent Judgment Lien is the prior, first and best lien (after the

lien of the Perry County Treasurer, if any).”

       {¶11} The Perry County Treasurer did not file an answer to Harris’ pleadings. 5



4
 Again, Appellant did not assert any claims as to the Perry County Treasurer.
5
 Civil Rule 7(A) requires a party upon whom a third party complaint is served to file an
answer. However, the record demonstrates Appellant did not state a claim against the
Perry County, Case No. 16-CA-00010                                                         5


          {¶12} On August 26, 2014, a receiver was appointed.

          {¶13} On February 11, 2015, the trial court substituted JTS Capital LLC as

plaintiff, retaining Park National Bank in the litigation due to Appellant’s cross-claims for

fraudulent transfer.

          {¶14} The matter proceeded to trial on December 16, 2015, to ascertain the

priority of liens as to the remaining parties. It is undisputed the Perry County Treasurer

did not appear at trial, nor file a trial brief.

          {¶15} On August 31, 2016, the trial court entered judgment disposing of all claims,

including a determination of the liens and priority.6 Appellant was found to have lien

priority, subject only to the claims of the Perry County Treasurer. The judgment entry

states,



                The Court finds that there is due the Treasurer of Perry County, Ohio,

          taxes, accured [sic] taxes, assessments and penalties on the premises, as

          shown on the County Treasurer’s tax duplicate, which are valid and

          subsisting liens thereon for that amount so owing. The lien held by James

          Harris shall be deemed second in line behind the taxes.




Perry County Treasurer. Rather, Appellant conceded in the pleadings his lien was
second to the Perry County Treasurer’s first and superior lien. Accordingly, we find the
Perry County Treasurer did not waive any argument presented herein by not filing a
responsive pleading to the answer or amended answer stating counterclaims, cross-
claims and third-party claims against other parties.
6
  The trial court’s judgment entry states, “The Defendants, James Harris, Martin Finta IV,
Martin Finta V, Joseph Finta, VDB Enterprises, Ltd., Grand Events, Ltd., Lake Cottage
Communities, Ltd. and Snug Harbor settled their claims. That agreement is set forth in
two separate Agreed Judgment Entries, which will be filed contemporaneously with this
Judgment Entry.” 8/31/2016 Judgment Entry.
Perry County, Case No. 16-CA-00010                                   6




      {¶16} Appellant assigns as error,



            I. THE TRIAL COURT ERRED IN NOT FINDING CO-DEFENDANT

      PERRY CO. TREASURER’S TAX CLAIMS AND LIENS AS INVALID,

      UNPROVEN, OR WITHOUT PRIORITY OR PRECLUDED BY ESTOPPEL,

      AS TO ANY SUCH CLAIMS AND LIENS ACCRUED BEFORE THE DATE

      OF FILING THE CASE (AND DERIVED INTEREST, PENALTIES, AND

      CLAIMS ACCRUED SINCE THEN ON SUCH CLAIMS.)

            II. THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY DATED

      AUGUST 31, 2016, WHEN IT FOUND THAT THERE WAS “DUE THE

      TREASURER OF PERRY COUNTY, OHIO, TAXES ACCRUED TAXES,

      ASSESSMENTS AND PENALTIES ON THE PREMISES, AS SHOWN ON

      THE COUNTY TREASURER’S TAX DUPLICATE, WHICH ARE VALID

      AND SUBSISTING LIENS THEREON FOR THAT AMOUNT SO OWING,”

      AND THAT THE APPELLANT’S LIEN WAS SUBORDINATE TO OR

      “BEHIND [ALL OF THE TREASURER OF PERRY COUNTY’S LIENS AND

      CLAIMS FOR] TAXES”, WHEN EVIDENCE AND TESTIMONY FOR SUCH

      TAXES, LIENS, OR CLAIMS OR PRIORITY WERE NOT INTRODUCED

      AT TRIAL.

            III. THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY DATED

      AUGUST 31, 2016, WHEN IT DID NOT FIND WITH SPECIFICITY THAT

      THE CROSS CLAIM DEFENDANT AND APPELLEE, THE PERRY
Perry County, Case No. 16-CA-00010                                            7


      COUNTY TREASURER, DID NOT HAVE A REPRESENTATIVE OR

      ATTORNEY PRESENT AT THE TRIAL PROCEEDING ON DECEMBER

      16, 2015.

            IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

      APPELLANT AND ABUSED ITS DISCRETION WHERE IT FOUND THAT

      THE APPELLEE’S TAX LIENS CLAIMED TO BE EXTANT AT THE FILING

      OF    THE     CASE   (INCLUDING    ANY     DERIVED   INTEREST     AND

      PENALTIES) WERE SUPERIOR TO THE APPELLANT’S LIEN, AGAINST

      THE MANIFEST WEIGHT OF THE EVIDENCE AND TESTIMONY

      ACTUALLY INTRODUCED AT THE TRIAL ON DECEMBER 16, 2015,

      WHEN THE TREASURER OF PERRY COUNTY INTRODUCED NO

      EVIDENCE NOR SUPPORT ITS CLAIMS TO ANY LIEN, TAX CLAIM OR

      PRIORITY.

            V. THE COURT ERRED, TO THE PREJUDICE OF THE

      APPELLANT AND/OR ABUSED ITS DISCRETION, WHEN IT DID NOT

      PRECLUDE       BY    ESTOPPEL,    ENJOIN    FROM     ASSERTING,   OR

      OTHERWISE BAR ANY LIENS OR TAX CLAIMS, OR SUBORDINATE

      ANY    LIEN    PRIORITY,   OF    THE   APPELLEE      PERRY   COUNTY

      TREASURER, THAT MATURED BEFORE AND BECAME FIXED BY THE

      TIME THIS CASE WAS FILED (TOGETHER WITH ANY RELATED

      ACCRUED INTEREST AND PENALTIES), PURSUANT TO ORC 2721,

      CIV. R. 57, GRAFTON V. MONG, 134 Ohio St.416, QUILL V. TROUTMAN

      ENT., INC., 2005-OHIO-2020, BERHNARD V. O’BRIEN, 97 OHIO APP.359
Perry County, Case No. 16-CA-00010                                                          8


       [SIC] 372, HILLING V. CITY OF CINCINNATI V. STERRIT, 57 OHIO ST.

       654, OR ON THE BASIS THAT THE CROSS CLAIM DEFENDANT,

       APPELLEE, AND PARTY TO THIS CASE, THE PERRY COUNTY

       TREASURER, DID NOT ANSWER THE APPELLANT’S CROSS CLAIMS

       OR AMENDED CROSS CLAIMS, FILE A TRIAL BRIEF, APPEAR AT

       TRIAL, NOR SUBMIT ANY EVIDENCE OR TESTIMONY DURING THE

       TRIAL.



                                         I, II, III, IV, and V.

       {¶17} As Appellant’s assigned errors raise common and interrelated issues, we

will address the arguments together.

       {¶18} As set forth above, Appellant’s pleadings before the trial court concede

Appellant’s claims were second in priority to the first and superior lien of the Perry County

Treasurer. Appellant did not assert a claim against the Perry County Treasurer, and did

not assert the tax lien was second to his lien.

       {¶19} The Perry County Treasurer did not waive its priority by failing to respond

to Appellant’s answer and/or the amended answer asserting counterclaims, cross-claims

and third-party claims, as Appellant did not state a claim against the Perry County

Treasurer. We further find the Perry County Treasurer did not waive its superior claim in

not appearing at trial in this matter, as Appellant conceded in his pleadings the inferiority

of his claim to the “first and superior” lien of the Perry County Treasurer. Rather, the trial

proceeded on a determination of all lien and ownership claims.
Perry County, Case No. 16-CA-00010                                                      9


       {¶20} The calculation of taxes is a mechanical and ministerial act which does not

render the trial courts entry a non-final appealable order. Citimortgage v. Roznowksi, 139

Ohio St.3d 299, 11 N.E.3rd 1140, 2014-Ohio-1984. Thus, the trial court’s determination of

lien priority and adjudication as to the remaining defendants, while not calculating the

exact tax calculation does not prevent the order from being final. Id.

       {¶21} O.R.C. 5721.10 provides,



              Except as otherwise provided under sections 5721.30 to 5721.43 of

       the Revised Code, the state shall have the first lien on the lands and lots

       described in the delinquent land list, for the amount of taxes, assessments,

       interest, and penalty charged prior to the delivery of such list.***



       {¶22} R.C. 323.11 states,



              The lien of the state for taxes levied for all purposes on the real and

       public utility tax list and duplicate for each year shall attach to all real

       property subject to such taxes on the first day of January, annually, or as

       provided in section 5727.06 of the Revised Code, and continue until such

       taxes, including any penalties, interest, or other charges accruing thereon,

       are paid.



       {¶23} Finally, R.C. 3247(B)(1) provides,
Perry County, Case No. 16-CA-00010                                                        10


               (B)(1) Except as provided in division (B)(3) of this section, if real

      estate is sold at judicial sale, the court shall order that the total of the

      following amounts shall be discharged out of the proceeds of the sale but

      only to the extent of such proceeds:

               (a) Taxes, assessments, interest, and penalties, the lien for which attaches

      before the date of sale but that are not yet determined, assessed, and levied for

      the year that includes the date of sale, apportioned pro rata to the part of that year

      that precedes the date of sale;

               (b) All other taxes, assessments, penalties, and interest the lien for which

      attached for a prior tax year but that have not been paid on or before the date of

      sale.7



      {¶24} We find the trial court properly found Appellant’s claim inferior to the tax lien

held by the Perry County Treasurer. Appellant’s arguments are not well-taken and all five

of his assignments of error are overruled.




7
 Appellant does not allege the proceeds of the sale were insufficient as the sale has not
occurred at the time of the appeal.
Perry County, Case No. 16-CA-00010                                        11


      {¶25} The judgment entered by the Perry County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
