[Cite as Lakeview Holding, L.L.C. v. DeBerry, 2013-Ohio-1457.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99033



                   LAKEVIEW HOLDING (OH), L.L.C.
                    (LAKEVIEW HOLDING, L.L.C.)
                                                  PLAINTIFF-APPELLANT

                                                    vs.

               JAMES FLEMISTER DEBERRY, ET AL.
                                         DEFENDANTS-APPELLEES


                                           JUDGMENT:
                                            DISMISSED
                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-773777

        BEFORE: Kilbane, J., Jones, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: April 11, 2013
ATTORNEYS FOR APPELLANT

Kirk W. Liederbach
Matthew A. Marsalka
Maureen C. Zink
Law Offices of Schwartz and Associates
27 N. Wacker Drive, #503
Chicago, Illinois 60606

ATTORNEYS FOR APPELLEES

For James Flemister DeBerry

James Flemister DeBerry, pro se
23751 S. Woodland Road
Shaker Heights, Ohio 44122

For Cuyahoga County Treasurer

Timothy J. McGinty
Cuyahoga County Prosecutor
Judith Miles
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

For National City Bank

National City Bank
6750 Miller Road, LOC 7120
Brecksville, Ohio 44141

For State of Ohio, Department of Taxation

Mike DeWine
Ohio Attorney General
By: Robert J. Byrne
Assistant Attorney General
Collections Enforcement Section
150 East Gay Street, 21st Floor
Columbus, Ohio 43215-3130
For United States Attorney’s Office

Steven M. Dettelbach
United States Attorney
Northern District of Ohio
By: Marlon A. Primes
Assistant United States Attorney
U.S. Courthouse, Suite 400
801 West Superior Avenue
Cleveland, Ohio 44113-1852
MARY EILEEN KILBANE, J.:

       {¶1} Lakeview Holding L.L.C. (“Lakeview”) appeals from the order of the trial

court that dismissed its tax certificate foreclosure action because it was not filed within

120 days of the filing of a notice of intent to foreclose as required by R.C. 5721.37. The

trial court’s order indicates that the case was “dismissed, subject to refiling,” and that

neither the general six-year statute of limitations for commencing such actions nor

Lakeview’s tax certificate has expired. We conclude that the trial court’s dismissal does

not affect a substantial right and does not determine the action and prevent a judgment.

Accordingly, there is no final appealable order in this matter and the appeal must be

dismissed.

       {¶2} On October 23, 2009, CapitalSource Bank FBO Aeon Financial, L.L.C.

(“CapitalSource”) purchased Tax Certificate B2009-1-1769, a tax certificate for the

2007-2008 tax year delinquency for a parcel located at 23751 S. Woodland Road, Shaker

Heights, and owned by James Flemister DeBerry.            CapitalSource recorded the tax

certificate with the county recorder, then sold it to Lakeview on August 31, 2010.

Pursuant to the terms of the certificate that was filed with the county recorder, it remains

valid for six years or until October 23, 2015.

       {¶3} On August 31, 2010, Lakeview purchased tax certificate S2010-2-232 for

the 2009 tax delinquency for the parcel. It recorded this certificate with the county
recorder   On August 26, 2011, Lakeview purchased tax certificate S2011-4-26 for the

2010 tax delinquency for the parcel and recorded this tax certificate.

       {¶4} Pursuant to R.C. 5721.37(A), the tax certificate holder can initiate

foreclosure no sooner than one year after the purchase of the tax certificates. Property

owners have the opportunity to redeem the certificates, and thereby remove the lien, by

paying the certificate holder the purchase price plus interest, penalties, and costs. R.C.

5721.38. Pursuant to R.C. 5721.37(C)(2), which became effective on September 22,

2008, a tax foreclosure complaint must be filed within 120 days after filing the notice of

intent to foreclose.

       {¶5} On August 30, 2011, Lakeview filed a notice of intent to foreclose,

pursuant to R.C. 5721.37, seeking to foreclose upon tax certificate B2009-1-1769 for the

2007-2008 tax years. Thereafter, on January 18, 2012, or approximately 141 days later,

Lakeview filed a complaint for foreclosure against DeBerry, alleging that the tax

delinquencies remained unpaid. On August 21, 2012, the magistrate recommended that

the matter be “dismissed, subject to refiling” because Lakeview did not file its tax

foreclosure complaint within 120 days of filing the notice of intent to foreclose. The

magistrate reasoned that the 120-day filing requirement of R.C. 5721.37(C) is a condition

precedent that must be met before the complaint is deemed properly filed.               The

magistrate noted, however, that “the procedure to be used for correcting a failure to file a

Complaint within 120 days of filing the Notice of Intent to Foreclose with the County

treasurer is to file a new Notice of Intent.”
       {¶6} On September 4, 2012, Lakeview filed objections to the magistrate’s

recommendation, arguing that R.C. 5721.37(C)’s 120-day interval between the filing of

the notice of intent to foreclose and the filing of the complaint is not a jurisdictional

prerequisite, but rather, renders the complaint subject to dismissal if the opposing party

raises this issue as an affirmative defense. Lakeview further argued that such affirmative

defenses are waived if not raised by the opposing party and may not be raised sua sponte

by the court.

       {¶7} On September 24, 2012, the trial court overruled Lakeview’s objections and

adopted the magistrate’s recommendation.          Lakeview now appeals and assigns the

following errors for our review:

                                   Assignment of Error 1

       A trial court’s dismissal without notice is reviewable under an abuse of
       discretion standard.

                                   Assignment of Error 2

       The trial court erred in sua sponte raising and deciding defenses to
       Plaintiff’s complaint that were not raised by any party.

                                   Assignment of Error 3

       The trial court erred in finding a jurisdictional bar to Plaintiff’s complaint.

       {¶8} Within these assignments of error, Lakeview complains that the court sua

sponte raised the issue of failure to comply with R.C. 5721.37(C)(2), and it erroneously

determined that the requirements of this statute are a condition precedent to a properly

pled complaint for foreclosure upon a tax certificate.

                        Jurisdiction — Dismissal Without Prejudice
       {¶9} Courts of appeals have jurisdiction to review final orders. Section 3(B)(2),

Article IV of the Ohio Constitution; R.C. 2505.03. In general, a trial court’s dismissal of

a matter without prejudice is not a final appealable order. See Zimmie v. Zimmie, 11 Ohio

St.3d 94, 464 N.E.2d 142 (1984). An order is final, however, if it “affects a substantial

right in an action that in effect determines the action and prevents a judgment.” R.C.

2505.02(B)(1). The appellant must demonstrate that, in the absence of immediate review

of the order, it will be denied effective relief in the future. Bell v. Mt. Sinai Med. Ctr., 67

Ohio St.3d 60, 63, 616 N.E.2d 181 (1993), modified on other grounds, Moskovitz v. Mt.

Sinai Med. Ctr., 69 Ohio St.3d 638, 1994-Ohio-324, 635 N.E.2d 331.

       {¶10} In this matter, however, the dismissal without prejudice does not determine

the action and does not prevent a judgment because the certificate has not expired and the

six-year statute of limitations has not yet expired. Lakeview may therefore simply refile

its notice of intent, then refile the foreclosure complaint within 120 days of that notice.

Indeed, the lower court noted that the case was “dismissed, subject to refiling.” Lakeview

cites to Svoboda v. Brunswick, 6 Ohio St.3d 348, 453 N.E.2d 648 (1983), to support its

claim that the matter is subject to review herein. In Svoboda, however, unlike this matter,

the plaintiff could not refile the matter following the court’s dismissal without prejudice

because the plaintiff had previously dismissed the action. See Selmon v. Crestview

Nursing & Rehab. Ctr., Inc., 184 Ohio App.3d 317, 2009-Ohio-5078, 920 N.E.2d 1017

(7th Dist.).

       {¶11} Accordingly, there is no final appealable order herein, and the appeal is

dismissed.
      It is ordered that appellee recover from appellant costs herein taxed.

      It is ordered that a special mandate be sent to said court 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.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
