O'Brien v. Port Lawrence Title & Trust Co.

• Decision Date: 13 May 1997
• Docket Number: No. CI96-3379,CI96-3379
• Citation: 87 Ohio Misc.2d 10,688 N.E.2d 1136
• Parties: O'BRIEN et al. v. PORT LAWRENCE TITLE AND TRUST COMPANY, Trustee, et al. *
• Court: Ohio Court of Common Pleas

Page 10

87 Ohio Misc.2d 10

688 N.E.2d 1136

O'BRIEN et al. v. PORT LAWRENCE TITLE AND TRUST COMPANY, Trustee, et al. ^*

No. CI96-3379.

Court of Common Pleas of Ohio,

Lucas County.

Decided May 13, 1997.

Bugbee & Conkle, Tybo A. Wilhelms, Toledo, and Richard L. Johnson, Perrysburg, for plaintiffs.

Eastman & Smith, Ltd., and James F. Nooney, Toledo, for defendants Port Lawrence Title and Trust Company and Independent Investments, Inc.

Spengler & Nathanson, and David G. Wise, Toledo, for defendant MedCorp, Inc.

RUTH ANN FRANKS, Judge.

This cause is before the court upon cross-motions for summary judgment filed by defendants, Port Lawrence Title and Trust Company and Independent Investments, Inc. ¹ and the plaintiffs Lori B. and Douglas S. O'Brien (collectively referred to as "plaintiffs" or "the O'Briens"). Upon careful consideration of the pleadings, memoranda, and oral arguments of counsel, competent evidence, and the applicable law, the court denies defendants' motion for summary judgment and grants plaintiffs' motion.

I. FACTS

The facts pertinent to this quiet title action are as follows. On or about March 13, 1992, Mrs. O'Brien took title to two parcels of real property known as 4016 and 4018 Schley Street located in Toledo, Lucas County, Ohio. The parcels are legally described as: "Lots 39 and 40 in J.R. Rauch Estate Subdivision" and bear the tax parcel Nos. 18604 and 18607, respectively. On the same date, Mrs Shortly after the purchase of the property, plaintiffs began operating a mobile x-ray and EKG service out of the commercial building on the 50 West Sylvania property. On February 3, 1993, plaintiffs sold the franchise back to the franchisor, moved to Henderson, Nevada, and began a similar business in Las Vegas.

O'Brien acquired an adjacent parcel known as 50 West Sylvania Avenue upon which a commercial building is located (this property includes tax parcel Nos. 18587, 18591, and 18594). The Schley property was used as a parking lot for the West Sylvania property.

On or about January 7, 1994, plaintiffs and defendant MedCorp entered into a lease agreement for the West Sylvania property. The lease included use of the Schley Street parking lot adjacent to the building. The lease was not recorded. MedCorp obtained possession of the property on February 14, 1994. Its lease expired and MedCorp vacated the premises on or about February 14, 1997.

A complaint in the Tax Foreclosure Action was filed on October 3, 1995, naming Mrs. O'Brien and her unknown spouse as defendants. The subject of the complaint was the delinquency of the real estate taxes on the two parcels on Schley Street, Lots 39 and 40. Ultimately the treasurer's office utilized publication in order to secure constructive service of process on the plaintiffs. A description of the property and proceeding was published in The Toledo Legal News for three consecutive weeks.

The O'Briens did not make an appearance or otherwise respond to the complaint. Therefore, a default judgment was granted in favor of the county treasurer. An order directing the sale of the property was issued to the Lucas County Sheriff. Notice of the sheriff's sale was published in The Blade. Thereafter, the Schley parcels were sold and transferred by sheriff's deed to defendant Port Lawrence, Trustee, on behalf of purchaser and primary defendant Independent Investments, Inc. (hereinafter defendants collectively referred to as "Independent"). The deed was transferred and recorded on October 22, 1996.

Plaintiffs filed the instant action on October 31, 1996, to quiet title to the parking lot property in the names of the O'Briens. Independent has filed a counterclaim and cross-claim against plaintiffs and defendant MedCorp. The three-count counterclaim seeks (1) an order quieting title and of ejectment, (2) an order of eviction and writ of restitution based upon defendant MedCorp's unlawfully and forcibly detaining possession of the property, and (3) damages for trespass and attorney fees. MedCorp in its answer, counterclaim, and cross-claim joins the O'Briens' request for an order quieting title and seeks an order On December 16, 1996, Independent filed motions for summary judgment on the O'Briens' and MedCorp's claims against it, and on Counts One and Two of its counterclaim against the O'Briens and cross-claim against MedCorp. Independent has also filed a motion for partial summary judgment on the issue of trespass in Count Three of his counterclaim against the O'Briens and cross-claim against MedCorp. Independent has not sought summary judgment as to the portion of Count Three that requests damages and attorney fees. Subsequently, plaintiffs filed a cross-motion for summary judgment and request for an order quieting title in their names to the Schley parcels. Oral arguments were held on the motions on March 13, 1997.

establishing the validity of its unrecorded lease. ²

II. SUMMARY JUDGMENT STANDARD

The general rules governing motions for summary judgment filed pursuant to Civ.R. 56 are well established. In Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, the Supreme Court of Ohio stated the requirements that must be met before a motion for summary judgment can be granted:

"The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.

"The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment."

A party who claims to be entitled to summary judgment on the grounds that a nonmovant cannot prove its case bears the initial burden of (1) specifically identifying the basis of its motion, and (2) identifying those portions of the record that demonstrate the absence of a genuine issue of material fact regarding an essential element of the nonmovant's case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274; see, also, Dresher, 75 Ohio St.3d at 299, 662 N.E.2d at 277-278 (Pfeifer, J., concurring in judgment only). The movant satisfies this burden by calling attention to some competent summary judgment evidence of the type listed in Civ.R. 56(C), affirmatively demonstrating that the nonmovant has no evidence to support his or her claims. Id. at 293, 299, 662

                N.E.2d at 273-274, 277-278.   Once the movant has satisfied this initial burden, the burden shifts to the nonmovant to set forth specific facts, in the manner prescribed by Civ.R. 56(E), indicating that a genuine issue of material fact exists for trial.  Id.  Accord Vahila v. Hall (1997), 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164, 1170-1172;  Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114-115, 526 N.E.2d 798, 800-802
                

III. ANALYSIS

Plaintiffs initially challenge the validity of the foreclosure proceedings based on the claim that the treasurer's office failed to comply with the requirements of Civ.R. 4.4(A), which requires the notice by publication to contain the last known address of the party for whom the notice is intended, and to notify said person that an answer must be filed within twenty-eight days after publication. Plaintiffs point to the fact that the notice of foreclosure listed Mrs. O'Brien's last known address as 4016 Schley Street and that the record is unrefuted that Mrs. O'Brien's last known address was never 4016 Schley Street.

In support if this argument, plaintiffs cite Northland Dodge, Inc. v. Damachi (1978), 56 Ohio App.2d 262, 10 O.O.3d 273, 382 N.E.2d 779, which held that the requirement of listing the last known address within the notice of publication is not merely a ministerial duty. The court further held in the syllabus:

"The requirement in Civ.R. 4.4(A), pertaining to service by publication, that the last known address of a defendant be included in the publication is mandatory, and a failure to include such information in the notice will result in defective service."

The court in Northland Dodge, Inc. went on to state that because service by publication is a last resort device, it will be strictly enforced, and that the purpose of including the last known address is to facilitate possible notice because a local person could more easily identify and notify a defendant of the suit. Id. at 264, 10 O.O.3d at 274-275, 382 N.E.2d at 780-781.

Because the treasurer's office failed to list the plaintiffs' last known address, plaintiffs argue that the service by publication is defective. Clearly, if service is defective, then the trial court is without jurisdiction to grant the default and the judgment based upon such faulty service is void ab initio.

In opposition, defendants argue that the procedural requirements attendant to service by publication need only be followed "substantially in the form" and the service by publication was constitutionally valid.

Clearly, the crux of the parties' dispute is whether notice of the tax foreclosure proceedings comported with the constitutional due process requirements. Plaintiffs argue that due to the deficiencies in the investigation to determine plaintiffs' Plaintiffs argue that Deputy Treasurer David Polek's investigation was deficient. Plaintiffs claim that the "Available Resource Checklist" and the procedures appurtenant were not properly followed. Plaintiffs further assert that a simple telephone call or visit to the West Sylvania and/or adjacent properties would have proven successful in locating the plaintiffs. Based upon the undisputed facts, plaintiffs assert that their due process rights of notice and an opportunity to be heard before the sale of their property were violated.

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