[Cite as Wright v. Fleming,
2014-Ohio-2050.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99882
JEANNET WRIGHT,1 AS ACTING TREASURER
PLAINTIFF-APPELLEE
vs.
JIMMIE L. FLEMING, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-07-619692
BEFORE: Stewart, J., Boyle, A.J., and Keough, J.
RELEASED AND JOURNALIZED: May 15, 2014
The original caption of this case was James Rokakis, as Treasurer v. Jimmie L. Fleming, et
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al. In accordance with App.R. 29(C), the court substitutes Jeannet Wright, the acting Treasurer of
Cuyahoga County.
ATTORNEY FOR APPELLANT
Samuel R. Smith, II
75 Public Square, Suite 1111
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Michael A. Kenny, Jr.
Anthony J. Giunta, Jr.
Adam D. Jutte
Colleen Majeski
Judith Miles
Gregory B. Rowinski
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} This case has a long and complicated procedural history arising from a
property encumbered with delinquent property taxes that was eventually forfeited to the
state. The owner of the property failed to follow a monthly payment agreement executed
with the county treasurer in order to address the tax arrears. As a result of the owner’s
default, the property was forfeited and eventually sold.
{¶2} In his sole assignment of error on appeal, appellant argues that the trial court
erred in denying his motion to stay the execution of sale where the contractual agreement
between the parties prevented the property from being sold at a sheriff’s sale. For the
reasons that follow, we affirm the decision of the trial court.
{¶3} On March 26, 2007, James Rokakis, as treasurer of Cuyahoga County, filed a
complaint in tax foreclosure against a property located on East 146th Street in Cleveland
and owned by Jimmie Fleming. The amount of taxes, assessments, penalties, and interest
on the delinquent land tax certificate attached to the complaint was $18,215.26.
{¶4} In May 2007, Fleming and the treasurer executed an agreement entitled
Delinquent/Unpaid Tax Contract where Fleming agreed to pay $303.59 a month in order
to satisfy the debt owed on the property. The terms of the contract stated that if Fleming
defaulted on the agreement, the balance remaining on the full amount would become
immediately due. The agreement also specifically stated that if Fleming defaulted on his
payments, the property would be scheduled for sheriff’s sale.
{¶5} Fleming defaulted on his payments and a tax hearing was held by a magistrate
on January 31, 2008. The magistrate issued a decision in foreclosure in favor of the
treasurer. This decision was filed on February 1, 2008. Fleming did not object to these
findings, and on March 7, 2008, the decision was adopted by the trial court.
{¶6} The county sheriff was ordered to offer the property for sale in March 2008
for a date of sale in May 2008. However, between May 2008 and September 2011, the
property was not sold due to various motions to stay the sale of the property granted by
the court. Fleming passed away on March 10, 2009. His brother, Gregory Fleming, as
administrator of Jimmie’s estate, continued to file motions to prevent the sale and transfer
of ownership of the property arguing that the contract signed by Jimmie and the treasurer
prohibited such a transfer.2
{¶7} In June 2012, the property was again ordered for sale; however, the order was
returned due to lack of bidders at the auction. The property was thereafter forfeited to
the state, and the order was journalized on July 11, 2012.
{¶8} In April 2013, the administrator of Fleming’s estate again filed a motion to
stay execution of sale without bond. The trial court denied this motion as moot because
the property had been forfeited to the state. On May 8, 2013, the administrator filed a
notice of appeal and a motion to stay the transfer of the deed with the trial court and with
the court of appeals. The motion to stay the transfer of the deed was filed without
The record does not contain a suggestion of death as required by Civ.R. 25(E), nor does the
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record indicate that Fleming’s estate had been substituted as a party under Civ.R. 25(A).
posting bond. We dismissed the appeal sua sponte for failure to file a record. On July
11, 2013, the administrator filed a motion for leave to amend the praecipe that was treated
by this court as a motion for reconsideration and was granted, thus reinstating this appeal.
{¶9} On appeal, the administrator argues that the trial court should have granted
his April 2013 motion to stay the execution of sale of the property on two grounds: first,
he claims that the terms of the agreement executed between Fleming and the treasurer
prevented the sale and, secondly, he argues that the trial court interfered with bankruptcy
proceedings by failing to grant the stay.
{¶10} We find appellant’s arguments to be without merit for several reasons:
primarily, we agree with the trial court’s decision that this case is moot. Once the
property was forfeited to the state in June 2012, the trial court was unable to restrict the
state from further transfer of the property. Additionally, when appellant filed his notice
of appeal and motion to stay, he again failed to post a bond and the property was sold.
{¶11} As a general principle, an appeal is moot if it is impossible for the appellate
court to grant any effectual relief . See Equibank v. Rivera, 8th Dist. Cuyahoga No.
72224, 1998 Ohio App. LEXIS 185 (Jan. 22, 1998). All ownership interest in this
property was lawfully transferred to the state in 2012 and from the state to a third-party
purchaser in September 2013. Since someone else is now the lawful owner of the
property, there is no remedy we are able to provide appellant if he were to prevail.
{¶12} Even if we did not find this appeal to be moot, we note that any arguments
based on error of the trial court’s decision are forfeited on appeal because Fleming failed
to comply with Civ.R. 53 by not objecting to the magistrate’s findings after the January
2008 tax hearing. Civ.R. 53(D)(3)(b)(iv) provides:
Except for a claim of plain error, a party shall not assign as error on appeal
the court’s adoption of any factual finding or legal conclusion, whether or
not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).
Under Civ.R. 53, parties have an affirmative duty to submit timely, specific, written
objections to the trial court, identifying any error of fact or law in the magistrate’s
decision. Huntington Natl. Bank v. Blount, 8th Dist. Cuyahoga No. 98514,
2013-Ohio-3128, ¶ 11. Because Fleming did not object to the magistrate’s findings, he
has waived any claimed error.
{¶13} As a final note, the appellant’s arguments that the treasurer violated the
terms of the delinquent tax contract and interfered with bankruptcy proceedings would be
equally unavailing. Fleming defaulted on the payments, thus entitling sale of the
property. Fleming’s last payment pursuant to the terms of the agreement was on January
18, 2008. When he failed to make a timely subsequent payment, his account went into
default and the property was immediately subject to foreclosure. With regard to the
bankruptcy stay, a review of the record demonstrates that the trial court took no action in
derogation to bankruptcy proceedings. Fleming filed a petition in bankruptcy on May 2,
2008. That case was dismissed on September 29, 2008 and closed on January 16, 2009.
In February 5, 2009, he filed another petition, which was dismissed on April 24, 2009 and
closed on May 17, 2009. Fleming’s motions for stay filed during the pendency of these
bankruptcy proceedings were granted by the trial court.
{¶14} Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, JUDGE
MARY J. BOYLE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
