[Cite as Talarek v. Walls, 2018-Ohio-1174.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

DANIEL J. TALAREK, LORAIN                            C.A. No.       17CA011158
COUNTY TREASURER

        Appellee
                                                     APPEAL FROM JUDGMENT
        v.                                           ENTERED IN THE
                                                     COURT OF COMMON PLEAS
JOHN D. WALLS, et al.                                COUNTY OF LORAIN, OHIO
                                                     CASE No.   16TX006744
        Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: March 30, 2018



        TEODOSIO, Presiding Judge.

        {¶1}     John D. Walls appeals the judgment of the Lorain County Court of Common

Pleas granting summary judgment in favor of Daniel Talarek, as Treasurer of Lorain County,

Ohio (“Lorain County”). We affirm.

                                                I.

        {¶2}     In August 2016, Lorain County filed its complaint for collection of delinquent

taxes and foreclosure against Mr. Walls. We have previously reviewed Mr. Walls’ appeal from

the decision of the Ohio Board of Tax Appeals (“BTA”) that determined the tax value of the

subject property in Walls v. Lorain Cty. Bd. of Revision, 9th Dist. Lorain No. 14CA010682,

2015-Ohio-5448, which provides the following background:

               Walls bought the subject property, which was formerly a YMCA, for
        $90,000 in January 2009. The six-year reappraisal in Lorain County occurred for
        tax year 2012. At that point, the county auditor decreased the value on the subject
        property from $610,900 to $303,500. Walls filed a complaint with the Lorain
        County Board of Revision (“BOR”) seeking a reduction in value to $90,000.
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               At the BOR hearing, Walls testified and presented the testimony of the
       real estate broker from the 2009 sale. In addition, a one-page “report” from the
       broker discussing the sale of the subject property and another YMCA was
       submitted. It is undated, but states that the value should be adjusted to the
       $90,000 purchase price. Finding the evidence insufficient to support a value
       change, the BOR maintained the county auditor’s value.
               Walls appealed to the BTA. The BTA held an evidentiary hearing at
       which Walls testified. The BTA approved the BOR’s value for the property.

Id. at ¶ 2-4. Upon review, we affirmed the decision of the BTA. Id. at ¶ 25.

       {¶3}   In December 2016, Lorain County filed its motion for summary judgment in the

present foreclosure action. In his brief in opposition to the motion for summary judgment, Mr.

Walls continued to argue that the value of the subject property for real estate tax purposes was

$90,000.00, and that he has timely paid taxes upon that value. The trial court granted summary

judgment in favor of Lorain County in June 2017.          Mr. Walls now appeals, raising one

assignment of error.

                                               II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN
       FAVOR OF THE APPELLEE DEPENDENT UPON THE DOCTRINE OF
       EXHAUSTION OF ADMINISTRATIVE REMEDIES, WHEN THE RECORD
       REFLECTS, AND THE LOWER COURT NOTED, THAT APPELLEE HAD
       AVAILED HIMSELF OF ADMINISTRATIVE REMEDIES BY FILING A
       COMPLAINT AGAINST THE VALUATION OF REAL ESTATE, WHICH
       RESULTED IN A DECISION RENDERED BY THE LORAIN COUNTY
       BOARD OF REVISION, FINDING THE FAIR MARKET VALUE OF THE
       SUBJECT PREMISES OF $90,000.00.

       {¶4}   Mr. Walls argues the trial court erred as a matter of law when it determined that

no genuine issue of material fact existed and granted Lorain County’s motion for summary

judgment based upon the exhaustion of administrative remedies doctrine. We disagree.

       {¶5}   Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56
                                                3


when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),

citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving

party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358–359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶6}    The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [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 that the nonmoving
       party has no evidence to prove its case. 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 that 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 that
       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.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶7}    In its order granting summary judgment, the trial court noted that a property

owner has an established process pursuant to R.C. 5715.19 to challenge the valuation of a parcel
                                                 4


and recognized that Mr. Walls had unsuccessfully challenged the valuation of his property for

the 2012 tax year. The trial court stated: “There is no indication that [Mr. Walls] has challenged

the value of the [p]roperty since then and based upon the doctrine of exhaustion of administrative

remedies, he and this [c]ourt must accept the value of the [p]roperty as assessed by the auditor

for purposes of tax calculation.”

       {¶8}    The trial court further stated that Mr. Walls’ attempt to challenge the valuation of

the property in the tax foreclosure action was not the appropriate action to do so and was not a

defense to the complaint. The court then noted that Mr. Walls did not make any other legal

argument in his brief in opposition outside of those stemming from his contention that the

valuation of the property was incorrect and had therefore failed to rebut the evidence presented

by Lorain County or show that an issue of material fact remained that would preclude the

granting of summary judgment.

       {¶9}    “The exhaustion of administrative remedies doctrine is a well-established

principle of Ohio law.” Waliga v. Coventry Twp., 9th Dist. Summit No. 22015, 2004-Ohio-5683,

¶ 12. “[T]he doctrine requires that a party exhaust available administrative remedies prior to

seeking court action in an administrative matter.” Id.

       {¶10} In the tax foreclosure action before the trial court, Mr. Walls was not directly

seeking court action in an administrative matter; rather, he had previously sought such court

action in his prior appeal from the decision of the BTA, which was ultimately reviewed by this

Court and affirmed. It is for this reason the trial court’s reference to “the doctrine of exhaustion

of administrative remedies” was an inaccurate usage (i.e., the fact of having exhausted an

administrative remedy is a different concept from the doctrine of exhaustion). The misstatement,

however, was harmless error, as we discern no violation of a substantial right as a result. See
                                                 5


Beck Energy Corp. v. Zurz, 9th Dist. Summit No. 27393, 2015-Ohio-1626, ¶ 13. Although the

trial court’s reference to the “doctrine of exhaustion” was inaccurate, the trial court was correct

in stating that it must accept the valuation as assessed by the auditor and that the foreclosure

action was not the proper action for challenging that valuation. See Hamilton v. Mansfield

Motorsports Speedway, LLC, 5th Dist. Richland No. 11 CA 103, 2012-Ohio-2446, ¶ 44. See

also Zier v. Bur. of Unemp. Comp., 151 Ohio St. 123 (1949), paragraph one of the syllabus (“An

appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed

by statute.”); Musial Offices, Ltd. v. Cty. of Cuyahoga, 8th Dist. Cuyahoga No. 99781, 2014-

Ohio-602, ¶ 11 (“[C]ourts of common pleas do not have original jurisdiction to hear property tax

valuation cases and have only appellate jurisdiction conferred on them by statute.”).

       {¶11} Mr. Walls’ argument continues to be based on his assertion that the Lorain

County Auditor’s valuation of the property is incorrect. This issue has previously been reviewed

and determined. In Walls v. Lorain Cty. Bd. of Revision, 9th Dist. Lorain No. 14CA010682,

2015-Ohio-5448, this Court affirmed the judgment of the Ohio Board of Tax Appeals that had

approved the Board of Revision’s valuation of the property as $303,500.00. The trial court was

therefore correct in determining that there was no genuine issue of material fact with regard to

the valuation of Mr. Walls’ property.

       {¶12} Although his assignment of error, as stated, makes no reference to it, Mr. Walls

also argues the collection of taxes as assessed on the property amounts to an unlawful taking in

violation of his constitutional rights. Mr. Walls did not raise this issue at the trial court level.

“Issues that were not raised to the trial court may not be considered for the first time on appeal.”

Rozhon v. Rozhon, 9th Dist. Medina No. 05CA0075-M, 2006-Ohio-3118, ¶ 18. Accordingly,

this Court will not address this line of argument.
                                                 6


       {¶13} Mr. Walls’ assignment of error is overruled.

                                                III.

       {¶14} Mr. Walls’ assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



CARR, J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:

GINO PULITO, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and CHRIS A. PYANOWSKI, Assistant Prosecuting
Attorney, for Appellee.
