Opinion

Johnson v. Ohio Dept. of Taxation

  • 2023 Ohio 4139
Court
Ohio Court of Claims
Filed
Oct 27, 2023
Status
Published
On the bench
Sadler
Cited by
0 cases
Authority
More cited than 14.3%

The opinion

[Cite as Johnson v. Ohio Dept. of Taxation, 2023-Ohio-4139.]

IN THE COURT OF CLAIMS OF OHIO

NADINE JOHNSON Case No. 2022-00506JD

Plaintiff Judge Lisa L. Sadler

Magistrate Holly True Shaver

v.

DECISION

OHIO DEPARTMENT OF TAXATION

Defendant

{¶1} On June 28, 2022, Plaintiff filed a Complaint, asserting claims of fraud and

unjust enrichment. On August 11, 2023, Defendant filed a Motion for Summary Judgment

pursuant to Civ.R. 56(B). On September 11, 2023, Plaintiff filed a response. Pursuant to

L.C.C.R. 4(D), the Motion for Summary Judgment is now fully briefed and before the Court

for a non-oral hearing. For the reasons stated below, Defendant’s motion is GRANTED.

Standard of Review

{¶2} Motions for summary judgment are reviewed under the standard set forth in

Civ.R. 56(C), which states, in part:

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 summary judgment as a matter of law. No evidence or stipulation

may be considered except as stated in this rule.

{¶3} “[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 material fact on a material element

of the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). To meet this initial burden, the moving party must be able to point to

Case No. 2022-00506JD -2- DECISION

evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293. “If the moving

party fails to satisfy its initial burden, the motion for summary judgment must be denied.”

Keaton v. Gordon Biersch Brewery Rest. Group, 10th Dist. Franklin No. 05AP-110, 2006-

Ohio-2438, ¶ 15.

{¶4} When the moving party makes a properly supported motion for summary

judgment, the adverse party may not rest upon the mere allegations or denials in the

pleadings but “by affidavit or as otherwise provided in [Civ.R. 56] must set forth specific

facts showing that there is a genuine issue for trial. If the party does not so respond,

summary judgment, if appropriate, shall be entered against the party.” Civ.R. 56(E). In

seeking and opposing summary judgment, parties must rely on admissible evidence and

evidentiary material as provided in Civ.R. 56(E). Keaton at ¶ 18. The Court must resolve

all doubts and construe the evidence in favor of the nonmoving party. Pilz v. Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 04AP-240, 2004-Ohio-4040, ¶ 8.

Facts

{¶5} On November 19, 2018, Plaintiff inherited property from the estate of her

mother-in-law, Mamie Johnson, through a Certificate of Transfer, which was recorded

with the Cuyahoga County Recorder’s Office. Complaint, ¶ 13-14. Richard S. Johnson,

Mamie Johnson’s son and Plaintiff’s husband, was the executor of Mamie Johnson’s

estate; however, he held no interest in the property. Id. at ¶ 11, 20.

{¶6} On December 21, 2020, Plaintiff sold the property to Najiy Sabir and recorded

the land installment contract with the Cuyahoga County Recorder’s Office. Id. at ¶ 15.

On December 22, 2021, a warranty deed was recorded with the Cuyahoga County

Recorder’s Office transferring title of the property from Plaintiff to Sabir. Id. at ¶ 17.

Heights Title Agency, Inc. (Heights Title) processed the warranty deed. Id. at ¶ 18.

Plaintiff asserts Heights Title improperly transferred a portion of the profits of the property

sale to Defendant, the Ohio Department of Taxation, to satisfy Richard S. Johnson’s tax

liens. Id. at ¶ 21. Plaintiff asserts that these funds were improperly transferred because

Richard S. Johnson has never held an interest in the property and therefore the funds

from the sale were not eligible to pay the tax liens. Id. at ¶ 20, 24. Plaintiff asserts claims

against Defendant for fraud and unjust enrichment. Id. at ¶ 27-40.

Case No. 2022-00506JD -3- DECISION

{¶7} In its Motion for Summary Judgment, Defendant asserts that, because it did

not make any representation to Plaintiff that she had to satisfy Richard S. Johnson’s debts

from the sale of the property, there can be no valid fraud claim as a matter of law.

Defendant’s Motion for Summary Judgment at p. 4. Furthermore, Defendant argues there

can be no valid unjust enrichment claim because it never received the funds as alleged

in Plaintiff’s complaint. Id. at p. 5.

Law and Analysis

Fraud

{¶8} For Plaintiff to establish her claim of fraud, she must prove the following

elements:

(a) a representation or, where there is a duty to disclose, concealment of a fact,

(b) which is material to the transaction at hand, (c) made falsely, with

knowledge of its falsity, or with such utter disregard and recklessness as to

whether it is true or false that knowledge may be inferred, (d) with the intent of

misleading another into relying upon it, (e) justifiable reliance upon the

representation or concealment, and (f) a resulting injury proximately caused by

the reliance.

{¶9} Morrow v. Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-

2665, 915 N.E.2d 696, ¶ 20 (10th Dist.).

Unjust Enrichment

{¶10} “To succeed in a claim for unjust enrichment, the trial court must find: ‘(1) a

benefit conferred by the plaintiff on the defendant, (2) knowledge of the benefit by the

defendant, and (3) retention of the benefit by the defendant in circumstances where it

would be unjust to do so.’” Longmire v. Danaci, 2020-Ohio-3704, 155 N.E.3d 1014, ¶ 32

(10th Dist.), quoting Lundeen v. Smith-Hoke, 10th Dist. No. 15AP-236, 2015-Ohio-5086,

¶ 51.

{¶11} In support of its motion, Defendant filed the affidavit of Andrew Littlefield,

Deputy Director of Resolutions for the Attorney General’s Office, who avers, in relevant

part, as follows:

Case No. 2022-00506JD -4- DECISION

3. Pursuant to R.C. 131.02, the Attorney General is tasked with

collecting final outstanding debt owed to the State of Ohio for state

agencies, institutions, boards, commissions, public university [sic] and

hospitals, and local government entities. These debts include certified

liabilities associated with tax liens.

4. Title companies frequently request lien payoff information

from the Attorney General regarding outstanding liens associated with

parties to real estate transactions. This is to insure the transfer of title is not

encumbered with a pre-existing lien.

5. On or about December 22, 2021, the Attorney General

received a Request for Payoff Information Form (“Form”) from Heights Title

Agency, Inc. A true and accurate copy of that document is attached to this

Affidavit.

6. The Request for Payoff Information Form is a release,

allowing the Attorney General to disclose information about an individual’s

debts to third parties. When the Attorney General responds to such a

request, it does not take a position on whether those liens encumber a

particular piece of property. The Attorney General only provides the

information to requestor as authorized by the individual.

7. The Form was signed by Richard S. Johnson and authorized

the release of information to Heights Title Agency, Inc.

8. In January 2022, the Attorney General released its response

to Heights Title Agency, Inc’s request. The response itemized debts owed

by Richard S. Johnson to the State of Ohio and provided reference numbers

for those debts.

9. Since sending out the response, the Attorney General has no

record of receiving funds from Heights Title Agency, Inc., or anyone else, to

satisfy any of Richard S. Johnson’s outstanding debts to the State of Ohio.

Defendant’s Exhibit B.

{¶12} Included as an attachment to Defendant’s Answer is a copy of the Request

for Payoff Information form, which was received by Defendant via fax on December 22,

Case No. 2022-00506JD -5- DECISION

2021. The Request for Payoff Information form is signed by Richard S. Johnson, gives

permission for Defendant to release to Heights Title (1) information related to debts owed

to the State of Ohio which have been certified to the Attorney General for collection and

(2) documents which effect a release of liens related to those debts. The attachments to

the form include printouts of two judgment liens in Cuyahoga County, Ohio for an

individual named Spencer Johnson.

{¶13} Defendant also filed Plaintiff’s responses to Defendant’s First Set of

Interrogatories, Requests for Admissions, and Requests for Production of Documents.

Defendant’s Exhibit A to its Motion for Summary Judgment. In the Requests for

Admissions, Plaintiff admits that she has no personal knowledge that Heights Title paid

any funds to the Ohio Department of Taxation, that she never gave any funds directly to

the Ohio Department of Taxation, and that her assertion that the Ohio Department of

Taxation improperly accepted payment of “tax/judgment liens” is solely based on

representations made by Heights Title. Id.

{¶14} Based on the foregoing, Defendant has identified evidentiary materials of the

type listed in Civ.R. 56(C) that demonstrate the absence of a genuine issue of material

fact on a material element of Plaintiff’s claims. Specifically, as to the fraud claim,

Defendant has shown that it responded to a form from Heights Title signed by Richard S.

Johnson who authorized the release of itemized debts owed by Richard S. Johnson to

the State of Ohio. The affidavit establishes that the information was not made falsely.

Moreover, the affidavit shows that Defendant never made a material representation to

Plaintiff or Heights Title that it was entitled to Plaintiff’s funds from the property sale. In

fact, Plaintiff’s name does not appear on the Request for Payoff Information Form signed

by Richard S. Johnson. As to the unjust enrichment claim, the affidavit establishes that

the Attorney General has no record of receiving funds from Heights Title or anyone else

to satisfy any of Richard S. Johnson’s outstanding debts to the State of Ohio. Therefore,

Defendant has pointed to evidence to show that it has not retained a benefit from Plaintiff.

{¶15} Because Defendant met its burden to show there is no genuine issue as to

any material fact, the burden, viewing the evidence most favorably in Plaintiff’s favor,

shifts to Plaintiff to set forth specific facts showing that there is a genuine issue for trial.

Civ.R. 56(E). In response to Defendant’s motion, Plaintiff asserts that Defendant received

Case No. 2022-00506JD -6- DECISION

the payment from Heights Title because Heights Title “stated it paid and the Defendant

accepted payment of the aforementioned tax/judgment liens,” and thus was unjustly

enriched. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary

Judgment, p. 9. In addition, Plaintiff filed her own affidavit, wherein she states, in relevant

part:

12. Based upon information and belief, Heights Title paid and the

Department of Taxation improperly accepted payment of the

aforementioned tax/judgment liens as a condition for the closing of the real

estate transaction between Najiy Sabir and me.

13. In addition, upon information and belief, Heights Title paid

$11,065.19 to the Cuyahoga County Treasurer for alleged 2020 taxes and

alleged delinquencies related to the Property.

14. No paperwork signed was ever notarized by and/or with me

or Richard S. Johnson.

15. It is my belief that the aforementioned alleged debts were not

proper liens of record or encumbrances that were subject to payment out of

the proceeds under the terms of the escrow agreement and/or other

agreement and/or understanding of the relevant parties.

16. As a result of the improper payments, I only received

$43,500.00 in proceeds from the sale of the Property to Najiy Sabir.

17. A federal IRS Form 1099-S using my social security number,

but under the name of Mr. Johnson, was also improperly issued.

Plaintiff’s Exhibit A.

{¶16} Civ.R. 56(E) states that “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.” “Personal

knowledge is knowledge gained through firsthand observation or experience, as

distinguished from a belief based on what someone else said.” State ex rel. Anderson v.

The Vill. of Obetz, 10th Dist. Franklin No. 06AP-1030, 2008-Ohio-4064, at ¶ 22 (internal

citations omitted).

Case No. 2022-00506JD -7- DECISION

{¶17} In Plaintiff’s affidavit, she asserts that the statements supporting claims of

Defendant’s alleged fraud and unjust enrichment were based on “information and belief”

rather than personal knowledge. Nadine Johnson Affidavit, ¶ 12. Furthermore, Plaintiff’s

belief is based on information obtained from Heights Title. Since these representations

were made by a third party and do not arise from Plaintiff’s personal knowledge of

Defendant’s actions, they are invalid to show that an issue of material fact exists. Plaintiff

has not submitted any other evidence to support her claims. Although Plaintiff contends

that Defendant accepted payment from Heights Title for the judgment liens, Plaintiff has

not provided the Court with any documentation to support that claim. Plaintiff’s

memorandum and attached affidavit do not point to corroborative evidence that an issue

of material fact exists regarding the elements of fraud or unjust enrichment.

{¶18} Plaintiff argues Defendant is not entitled to summary judgment because

Defendant did not provide any evidence contrary to Plaintiff’s assertions for the fraud

claim. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary

Judgment, p. 7. Plaintiff thus asserts that, because Defendant did not present evidence

that it did not receive the funds, an issue of material fact remains. This is not so. Pursuant

to Civ.R. 56(E), Defendant submitted the affidavit of Andrew Littlefield wherein he attests

Defendant has no record of receiving any funds from Plaintiff or Heights Title.

Defendant’s Exhibit B, ¶ 9. This affidavit is sufficient evidence to establish that no funds

were received by Defendant. Plaintiff has presented no documentation to show that

Defendant received proceeds from the sale of the property, or any other evidence that

the transaction ever occurred. Although the Request for Payoff Information Form is

signed by Richard S. Johnson and pertains to the property that Plaintiff claims was solely

bequeathed to her, Plaintiff’s name does not appear on the form. At most, the evidence

shows that Defendant responded to a Request for Payoff Information Form initiated by

Richard S. Johnson and Heights Title. The affidavit of Littlefield shows that when the

Attorney General responds to such a request, it does not take a position on whether the

liens encumber a particular piece of property. Because the evidence does not show that

Defendant represented to Plaintiff that it was entitled to receive funds from the sale of her

property or that Defendant ever received any funds from the sale of her property,

Case No. 2022-00506JD -8- DECISION

reasonable minds can conclude only that there are no genuine issues of material fact and

that Defendant is entitled to summary judgment as a matter of law.

{¶19} Defendant met its initial burden, pursuant to Civ.R. 56(C), to demonstrate

that there is no genuine issue as to any material fact that it made any fraudulent

representation to Plaintiff or Heights Title that it was entitled to proceeds from the property

sale, or that it was unjustly enriched from the property sale. However, Plaintiff did not

meet her reciprocal burden, pursuant to Civ.R. 56(E), to set forth specific facts showing

that there is a genuine issue of material fact for trial. Accordingly, Defendant is entitled

to judgment as a matter of law and its Motion for Summary Judgment is GRANTED.

Conclusion

{¶20} For the reasons stated above, Plaintiff did not present sufficient evidence to

demonstrate that there are triable issues of material fact. See Mitchell v. Mid-Ohio

Emergency Servs., LLC, 10th Dist. Franklin No. 03AP-981, 2004-Ohio-5264, 12, citing

Turner v. Turner, 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (“In the summary judgment

context, a ‘material’ fact is one that might affect the outcome of the suit under the

applicable substantive law.”). For the reasons set forth above, Defendant’s Motion for

Summary Judgment is GRANTED.

LISA L. SADLER

Judge

[Cite as Johnson v. Ohio Dept. of Taxation, 2023-Ohio-4139.]

NADINE JOHNSON Case No. 2022-00506JD

Plaintiff Judge Lisa L. Sadler

Magistrate Holly True Shaver

v.

JUDGMENT ENTRY

OHIO DEPARTMENT OF TAXATION

Defendant

IN THE COURT OF CLAIMS OF OHIO

{¶21} A non-oral hearing was conducted in this case upon Defendant’s Motion for

Summary Judgment. For the reasons set forth in the decision filed concurrently herewith,

Defendant’s Motion for Summary Judgment is GRANTED and judgment is rendered in

favor of Defendant. All previously scheduled events are VACATED. Court costs are

assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment

and its date of entry upon the journal.

LISA L. SADLER

Judge

Filed October 27, 2023

Sent to S.C. Reporter 11/16/23

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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