Sullivan v. Monument Homes Inc. , 2020 Ohio 2846 ( 2020 )

[Cite as Sullivan v. Monument Homes Inc., 2020-Ohio-2846.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Cheryl Brooks Sullivan, :
Treasurer, Franklin County, Ohio,
:
Plaintiff-Appellee,
:
v.
: No. 19AP-814
Monument Homes Inc. et al., (C.P.C. No. 19CV-289)
:
Defendants-Appellees, (REGULAR CALENDAR)
:
(Michael J. Young,
:
Defendant-Appellant).
:
D E C I S I O N
Rendered on May 7, 2020
On brief: Michael J. Young, pro se.
On brief: Ron O'Brien, Prosecuting Attorney, and William
Stehle, for appellee Cheryl Brooks Sullivan.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM
{¶ 1} Defendant-appellant, Michael J. Young, appeals from a judgment of the
Franklin County Court of Common Pleas in favor of plaintiff-appellee, Cheryl Brooks
Sullivan, Franklin County Treasurer ("the treasurer"). For the reasons that follow, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 11, 2019, the treasurer filed a complaint, pursuant to R.C.
5721.18(A) and 323.25, seeking foreclosure on a lien of the State of Ohio for delinquent
No. 19AP-814 2
taxes, assessment, and penalties. The complaint alleges that Monument Homes Inc.
acquired title to seven separate parcels of real property in Franklin County, Ohio, by
separate warranty deeds filed January 3, 1992.1 The complaint further alleges that on
March 13, 2012, the Franklin County Auditor, pursuant to the provisions of R.C. 5721.13,
filed with the prosecuting attorney of Franklin County, Ohio, a delinquent land tax
certificate concerning the seven parcels in the total amount of $11,977.66, together with
unpaid interest and penalties. Pursuant to R.C. 5721.18 and 323.26, the complaint seeks a
declaration that the sums owed to be a first lien in favor of the State of Ohio on the subject
real property and, unless paid within a reasonable time, an order that the premises be sold
by the sheriff of Franklin County, Ohio, in the manner provided by law for sale of real estate
on execution.
{¶ 3} On February 8, 2019, Young filed a proposed answer to the complaint and a
motion to intervene in the action as a defendant claiming that he "was granted title to the
said real estate on January 24, 2019 per a deed filed of record at the Franklin County
Recorder's Office, Franklin County, Ohio, and being Instrument Number
201901240009559." (Mot. to Intervene at 2.) On February 22, 2019, the trial court granted
Young's unopposed motion to intervene. In his answer to the complaint, Young denied that
the county auditor had any legal right to assess real estate taxes on his property, that the
State of Ohio did not have a valid lien on his real property, and that the prosecuting attorney
had no legal right to file, on behalf of the treasurer, an action seeking foreclosure against
his real property and order of sale.
{¶ 4} On September 26, 2019, the treasurer filed a motion for summary judgment.
The treasurer submitted the affidavit of Casey W. Tyack in support of the motion. In his
affidavit, Tyack avers, in relevant part, as follows:
1. I am the Foreclosure Coordinator of the Delinquent Tax
Division of the Franklin County Treasurer's Office (the
"Treasurer's Office"). My job duties include quoting payoffs
and receiving payments associated with judicial sales,
assisting tax payers with delinquent tax problems, setting up
payment plans and organizing and analyzing delinquent tax
and foreclosure data. I am, therefore, authorized to make this
affidavit on behalf of the Treasurer's Office.
1Parcel
Numbers 600-148027-00, 600-148028-00, 600-148029-00, 600-148030-00, 600-148031-00, 600-
148032-00, and 600-148033-00.
No. 19AP-814 3
2. The information contained in this affidavit is based on my
personal knowledge and the records maintained by the
Treasurer's Office.
3. The public records of the Franklin County Treasurer, as
maintained in the Tax Duplicate, reflect that taxes are due to
Franklin County including * * * $1,890.43 as to Parcel
Number 600-148027-00 and $1,742.55 as to Parcel Number
600-148028-00 and $1,742.55 as to Parcel Number 600-
148029-00 and $1,890.43 as to Parcel Number 600-148030-
00 and $1,742.55 as to Parcel Number 600-148031-00 and
$1,742.55 as to Parcel Number 600-148032-00 and $1,742.55
as to Parcel Number 600-148033-00 in the total amount of
$12,493.61.
(Ex. 3, attached to Mot. for Summ. Jgmt.)
{¶ 5} The treasurer also submitted with the motion for summary judgment
certified copies both of the warranty deeds to the subject parcels and the treasurer's tax bills
for each of the subject parcels for the second half of 2018. The warranty deeds evidence
Young's ownership interest in each of the subject parcels and the treasurer's tax bills
evidence the balance of unpaid real property taxes past due and owing for each of the
subject parcels.
{¶ 6} In his memorandum in opposition to the treasurer's motion for summary
judgment, Young made the following argument:
All the provisions embodied in the Ohio Revised Code
regarding collection of taxes supposedly levied on real estate
parcels in counties within the State of Ohio are without force
* * * as these provisions lack any power because there is NO
UNDERLYING AUTHORITY to levy such taxes. There is no
authority in the Ohio Constitution or any other provisions of
Ohio Government that confers the authority of the State of
Ohio and its Counties to levy taxes on real estate parcels and
property.
(Emphasis sic.) (Oct. 11, 2019 Memo. Contra at 3.)
{¶ 7} In the November 13, 2019 "Finding of the Court and Order of Sale," the trial
court rejected Young's argument stating: "[T]he Court does not find his arguments
persuasive. Young alleges that 'Franklin County and the State of Ohio have no legal
authority to levy taxes against these described parcels or against any other real estate
parcels located in Franklin County.' Young is incorrect; Franklin County has legal authority
to collect unpaid taxes. See O.R.C. 323.25." (Nov. 13, 2019 Finding of the Court and Order
No. 19AP-814 4
of Sale at 1.) Accordingly, the trial court granted the treasurer's motion for summary
judgment, declared the treasurer's lien as described in the complaint as the best lien against
the premises, and entered judgment for the treasurer in the total amount of $14,034.01.
The trial court also ordered the sale of the subject property and payment to the treasurer of
any additional taxes, assessments, penalties, charges, and interest accruing prior to sale.
{¶ 8} Young timely appealed to this court the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
{¶ 9} Young assigns the following as trial court error:
[1.] THE TRIAL COURT DID NOT ADDRESS APPELLANT'S
ARGUMENT SET FORTH IN APPELLANT MICHAEL J.
YOUNG'S MEMORANDUM CONTRA PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT. AS SET FORTH IN
APPELLANT'S REPLY. AS TO PLAINTIFF'S "STATEMENT
OF FACTS", THE COURT DID NOT ADDRESS
APPELLANT'S ARGUMENT THAT FRANKLIN COUNTY
AND THE STATE OF OHIO HAVE NO LEGAL
CONSTITUTIONAL AUTHORITY TO TAX REAL PROPERTY
IN OHIO, AND THEREFORE, CANNOT PERFECT A LIEN
ON REAL PROPERTY FOR TAXES THAT COUNTIES OR
THE STATE HAS NO AUTHORITY TO LEVY UPON. THERE
IS NO LEGAL AUTHORIZATION IN THE OHIO
CONSTITUTION TO IMPOSE TAXES ON REAL PROPERTY
IN OHIO.
[2.] THE TRIAL COURT'S FAILURE TO RECOGNIZE THAT
THE OHIO LEGISLATIVE STATUTES CITED IN ITS
"FINDING OF THE COURT AND ORDER OF SALE",
SPECIFICALLY O.R.C. SECTIONS 323.25 AND 323.47,
CANNOT APPLY AS A MECHANISM TO COLLECT TAXES,
AS THERE IS NO UNDERLYING CONSTITUTIONAL
AUTHORITY IN THE OHIO CONSTITUTION THAT
PERMITS THE STATE OF OHIO OR OHIO COUNTIES TO
LEVEY TAXES AGAINST REAL PROPERTY IN OHIO.
SINCE THERE IS NO AUTHORITY TO LEVY SUCH TAXES
AGAINST REAL PROPERTY, ALL SECTIONS OF THE OHIO
REVISED CODE REGARDING IMPOSITION AND
COLLECTION OF SUCH TAXES ARE WITHOUT POWER
AND OF NO EFFECT.
[3.] THE TRIAL COURT HAS FAILED TO ADDRESS
APPELLANT'S AFFIRMATIVE DEFENSE THAT STATES
THAT APPELLANT YOUNG CLAIMS THE DOCTRINE OF
SOVEREIGNTY AND DERIVES NO BENEFITS FROM THE
TAXATION PURPORTEDLY IMPOSED ON HIS PROPERTY.
No. 19AP-814 5
(Sic passim.)
III. STANDARD OF REVIEW
{¶ 10} We review a summary judgment motion de novo. Leonard v. MBB
Partnership, 10th Dist. No. 15AP-956, 2016-Ohio-3534, ¶ 7, citing Regions Bank v. Seimer,
10th Dist. No. 13AP-542, 2014-Ohio-95, ¶ 9. Pursuant to Civ.R. 56(C), summary judgment
"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if
any, timely filed in the action, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Pursuant to Civ.R.
56(E), "[s]upporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified
copies of all papers or parts of papers referred to in an affidavit shall be attached to or served
with the affidavit."
{¶ 11} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St. 3d 280, 292 (1996). The
burden then shifts to the defending party to set forth specific facts showing that there is a
genuine issue for trial. Id. If the defending party does not so respond, summary judgment,
if appropriate, may be entered in favor of the party seeking affirmative relief. Id.
IV. LEGAL ANALYSIS
A. Young's Second Assignment of Error
{¶ 12} Because Young's second assignment of error contains his primary argument
on appeal, we will consider it first. In his second assignment of error, Young claims the
provisions of the Ohio Revised Code on which the treasurer relies in support of her right to
collect taxes on real property located in Franklin County are completely without force and
effect due to the absence of specific language in the Ohio Constitution enabling the Ohio
General Assembly to enact such legislation. Young's argument is without merit.
{¶ 13} "The foundation of the State's taxing authority is in Section 1 of Article II of
the Ohio Constitution, which confers general legislative power upon the General
No. 19AP-814 6
Assembly." Callison v. Huelsman, 168 Ohio App. 3d 471, 2006-Ohio-4395, ¶ 7 (2d Dist.),
citing Haefner v. Youngstown, 147 Ohio St. 58 (1946). The Supreme Court of Ohio has
stated " '[t]he power to tax is an attribute of sovereignty and in this state is included in the
general legislative power which is conferred by Section 1, Article II of the Constitution, upon
the general assembly without limitation.' " Weed v. Franklin Cty. Bd. of Revision, 53 Ohio
St.2d 20, 21 (1978), quoting Saviers v. Smith, 101 Ohio St. 132 (1920). Article XII, Section
2 of the Ohio Constitution empowers the General Assembly to determine the subjects and
methods of taxation and exemption of real and personal property, limited only by Article I
of the Ohio Constitution. Frederick Bldg. Co. v. Cuyahoga Cty. Bd. of Revision, 13 Ohio
St.2d 59 (1968); State ex rel. Williams v. Glander, 148 Ohio St. 188 (1947), cert. denied,
332 U.S. 817 (1947).
{¶ 14} The General Assembly has enacted R.C. 5709.01(A) which provides: "All real
property in this state is subject to taxation, except only such as is expressly exempted
therefrom." The General Assembly has also enacted R.C. 323.12(A), which requires that
"[e]ach person charged with taxes shall pay to the county treasurer the full amount of such
taxes on or before the thirty-first day of December." "R.C. 323.121 provides for penalties if
payments are untimely." Callison at ¶ 7.
{¶ 15} The Supreme Court has "acknowledged that, generally, ' "legislatures are
presumed to have acted within their constitutional power despite the fact that, in practice,
their laws result in some inequality." ' " GTE North, Inc. v. Zaino, 96 Ohio St. 3d 9, 2002-
Ohio-2984, ¶ 21, quoting MCI Telecommunications Corp. v. Limbach, 68 Ohio St. 3d 195,
199 (1994), quoting McGowan v. Maryland, 366 U.S. 420, 425-26 (1961). Furthermore,
"[i]t is well settled that the assessment of taxes is fundamentally a legislative responsibility
and that a taxpayer challenging the constitutionality of a taxation statute 'must negate every
conceivable basis which might support it.' " GTE North at ¶ 21, quoting Lyons v. Limbach,
40 Ohio St. 3d 92, 94 (1988); Weed at 21.
{¶ 16} Here, Young's memorandum in opposition to the treasurer's motion for
summary judgment simply alleges a lack of underlying constitutional support for the
provision of the Ohio Revised Code on which the treasurer relied, without identifying or
discussing any specific constitutional provision. Moreover, Article XII, Section 2 of the
No. 19AP-814 7
Ohio Constitution expressly authorizes property taxes for state and local purposes as
follows:
No property, taxed according to value, shall be so taxed in
excess of one per cent of its true value in money for all state
and local purposes * * *. Land and improvements thereon
shall be taxed by uniform rule according to value * * *.
Without limiting the general power, subject to the provisions
of Article I of this constitution, to determine the subjects and
methods of taxation or exemptions therefrom, general laws
may be passed to exempt burying grounds, public school
houses, houses used exclusively for public worship,
institutions used exclusively for charitable purposes, and
public property used exclusively for any public purpose, but
all such laws shall be subject to alteration or repeal; and the
value of all property so exempted shall, from time to time, be
ascertained and published as may be directed by law.
{¶ 17} Though the Supreme Court has acknowledged that Article XII, Section 2 of
the Ohio Constitution represents a limitation on the general grant of legislative power, the
court has also recognized that Article XII, Section 2 is not self-executing and requires the
enactment of laws. Anderson v. Durr, 100 Ohio St. 251, 263 (1919) (decided under former
analogous section), aff'd, 257 U.S. 99 (1921). Young has failed to bring to the attention of
this court any provision of the Ohio Revised Code that would exempt him or his real
property from the property tax liability imposed by Chapters 5709 and 323. Because Young
failed to articulate legal support for his asserted defense, we agree with the trial court's
ruling.
{¶ 18} We note that Young argues in his merit brief, for the first time in this case,
that Article I, Section 1 of the Ohio Constitution precludes state and local property tax.
Article I, Section 1 entitled "[r]ight to freedom and protection of property" provides that
"[a]ll men are, by nature, free and independent, and have certain inalienable rights, among
which are those of enjoying and defending life and liberty, acquiring, possessing, and
protecting property, and seeking and obtaining happiness and safety." Because Young
failed to make this specific argument at trial, he has arguably waived it for purposes of
appeal. Foy v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-723, 2017-Ohio-1065,
¶ 32 ("A party may not change its theory of the case and present new arguments for the first
time on appeal."); Moore v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-732, 2011-
Ohio-1607, ¶ 22 (appellant has waived his equitable tolling argument by failing to raise it
No. 19AP-814 8
before the trial court and may not raise it for the first time on appeal). See also Clifton Care
Ctr. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-709, 2013-Ohio-2742, ¶ 13;
Freedom Mtge. Corp. v. Groom, 10th Dist. No. 08AP-761, 2009-Ohio-4482, ¶ 27.
Nevertheless, in light of Article XII, Section 2 of the Ohio Constitution, which expressly
authorizes state and local property taxes, and the absence of any assertion by Young his
property is exempted from taxation by statute, we find no merit in Young's argument. See
State v. Williams, 88 Ohio St. 3d 513 (2000), cert. denied, 531 U.S. 902 (2000) (Article I,
Section 1 is not self-executing because its language lacks the completeness required to offer
meaningful guidance for judicial enforcement.).
{¶ 19} For the foregoing reasons, Young's second assignment of error is overruled.
B. Young's First Assignment of Error
{¶ 20} In Young's first assignment of error, Young contends the trial court failed to
address Young's constitutional argument in opposition to the treasurer's motion for
summary judgment. We disagree.
{¶ 21} The trial court rejected Young's argument stating: "[T]he Court does not find
his arguments persuasive. Young alleges that 'Franklin County and the State of Ohio have
no legal authority to levy taxes against these described parcels or against any other real
estate parcels located in Franklin County.' Young is incorrect; Franklin County has legal
authority to collect unpaid taxes. See O.R.C. 323.25." (Finding of the Court and Order of
Sale at 1.) As we noted in overruling Young's second assignment of error, "[i]t is well settled
that the assessment of taxes is fundamentally a legislative responsibility and that a taxpayer
challenging the constitutionality of a taxation statute 'must negate every conceivable basis
which might support it.' " GTE North, 2002-Ohio-2984, at ¶ 21, quoting Lyons, 40 Ohio
St.3d at 94; Weed, 53 Ohio St. 2d at 21. As we explained in our rejection of Young's second
assignment of error, Young's memorandum in opposition to the treasurer's motion for
summary judgment simply alleges a lack of underlying constitutional support for the
provision of the Ohio Revised Code on which the treasurer relied, without identifying or
discussing any specific constitutional provision. Thus, any perceived lack of detail in the
trial court's decision is attributable to Young's failure to develop his constitutional
argument, rather than a failure on the part of the trial court to address it. Moreover, in the
context of a trial court ruling on a motion for summary judgment, a lack of detail in the trial
No. 19AP-814 9
court's decision does not necessarily evidence a lack of proper consideration. Priore v.
State Farm Fire & Cas. Co., 8th Dist. No. 99692, 2014-Ohio-696, ¶ 11. See also Foxfire
Village Condominium Unit Owners' Assn. v. Meyer, 10th Dist. No. 13AP-986, 2014-Ohio-
3339, ¶ 20, citing Civ.R. 52 (stating the findings of fact and conclusions of law required by
Civ.R. 52 are unnecessary in a ruling on a Civ.R. 56 motion). In light of Young's failure to
assert or develop any particular constitutional basis for his opposition to the treasurer's
motion for summary judgment, the trial court was under no obligation to identify and
discuss possible arguments Young could have made but did not. Under the circumstances,
the trial court properly disposed of Young's arguments in granting the treasurer's motion
for summary judgment.
{¶ 22} For the foregoing reasons, Young's first assignment of error is overruled.
C. Young's Third Assignment of Error
{¶ 23} In Young's third assignment of error, Young contends the trial court erred by
failing to specifically address his claim that the "doctrine of sovereignty" represented a
complete defense to the treasurer's complaint. (Young's Brief at 12.) We disagree.
{¶ 24} Initially, we note that although Young's answer asserts the "doctrine of
sovereignty" as an affirmative defense, Young did not mention the "doctrine of sovereignty"
in his memorandum in opposition to the treasurer's motion for summary judgment. In his
merit brief in this court, the only asserted legal support for Young's "doctrine of
sovereignty" argument is the decision of the Supreme Court of the United States in Osborn
v. The Bank of the United States, 22 U.S. 738 (1824). In Osborn, the Supreme Court of the
United States sustained the authority of an Ohio federal circuit court to entertain a suit
brought by the Second Bank of the United States to enjoin the collection of a state tax levied
against the bank. Osborn held that specific language in the bank's charter, which allowed
it to "sue and be sued * * * in all State Courts having competent jurisdiction, and in any
Circuit Court of the United States," was a congressional grant of federal jurisdiction in all
cases to which the bank was a party. Id. at 817.2
{¶ 25} In our view, the Osborn decision provides no support for Young's argument
in this case. The holding in Osborn that a federally chartered bank may bring suit in federal
2 Though "[a]lmost every aspect of Chief Justice Marshall's opinion [in Osborn] has been questioned at one
time or another, * * * Osborn has not been overruled." Roche v. Am. Red Cross, 680 F. Supp. 449, 452
(D.Mass.1988).
No. 19AP-814 10
court to enjoin the imposition of a state tax because the bank had consented to sue or be
sued in any circuit court in the United States does not support Young's claim that his
consent is required before the state may impose a tax on his real property located in the
state.3 Moreover, Ohio courts have unanimously rejected similar claims. For example, in
Callison, the Second District rejected the landowners' claim that a notice of declaration of
land patent published in a local newspaper and a reservation of rights filed pursuant to the
Uniform Commercial Code exempted them from the obligation to pay tax pursuant to
Article II, Section 1 of the Ohio Constitution and R.C. 5709.01(A). Similarly, this court has
held defenses to a foreclosure action, based either on "sovereign citizen" or "redemptionist"
theories, are without merit. Wells Fargo Bank, N.A. v. Parrish, 10th Dist. No. 15AP-243,
2015-Ohio-4045, ¶ 15. See also U.S. Bank Natl. Assn. v. Martin, 1st Dist. No. C-170338
(Oct. 5, 2018), discretionary appeal not allowed, 154 Ohio St. 3d 1482, 2019-Ohio-173
(mortgagor's arguments based on "sovereign citizen" and "redemptionist" theories are
frivolous). This and other Ohio courts have also rejected claims by criminal defendants that
their purported status as sovereign citizens divest state courts of jurisdiction absent
consent. See, e.g., State v. Gunnell, 10th Dist. No. 13AP-90, 2013-Ohio-3928, ¶ 6
("sovereign citizen" arguments have been raised "by pro se litigants, albeit unsuccessfully");
State v. Few, 2d Dist. No. 25969, 2015-Ohio-2292, ¶ 6 (rejecting appellant's "sovereign
citizen" arguments as "wholly frivolous"); State v. Farley, 5th Dist. No. CT2013-0026,
2013-Ohio-5517, ¶ 14 (there is "no legal authority to support" appellant's "sovereign citizen"
arguments); Shaker Heights v. El-Bey, 8th Dist. No. 105701, 2017-Ohio-9022, ¶ 4
(appellant's status as a "sovereign person" did not absolve him from prosecution).
{¶ 26} Based on the foregoing, we find no legal support for Young's doctrine of
sovereignty defense. And, to the extent Young contends he should be exempted from the
payment of property tax because he receives no benefit from the state or county in return
for sums paid, Young did not raise this argument in the trial court and has waived the
argument for purposes of appeal. Foy, 2017-Ohio-1065, at ¶ 32; Moore, 2011-Ohio-1607,
at ¶ 22; Clifton Care Ctr., 2013-Ohio-2742, at ¶ 13; Groom, 2009-Ohio-4482, at ¶ 27.
{¶ 27} For the foregoing reasons, Young's third assignment of error is overruled.
3Young's citation to McCulloch v. Maryland, 17 U.S. 316 (1819), is similarly unavailing as that case deals with
the federal government's immunity from state taxation inherent in the Supremacy Clause of the United States
Constitution.
No. 19AP-814 11
V. CONCLUSION
{¶ 28} Having overruled Young's three assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., BROWN, and DORRIAN, JJ., concur.
_____________