[Cite as Lakeview Holding, L.L.C. v. DeBerry,

.]

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,

,

(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.,

,

(1993), modified on other grounds, Moskovitz v. Mt.

Sinai Med. Ctr.,

,

,

.

{¶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,

,

(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.,

,

,

(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