[Cite as Lakeview Holding, L.L.C. v. DeBerry, 2013-Ohio-1457.]

 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, 11 Ohio 

St.3d 94, 464 N.E.2d 142 (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., 67 

Ohio St.3d 60, 63, 616 N.E.2d 181 (1993), modified on other grounds, Moskovitz v. Mt. 

Sinai Med. Ctr., 69 Ohio St.3d 638, 1994-Ohio-324, 635 N.E.2d 331. 

{¶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, 6 Ohio St.3d 348, 453 N.E.2d 648 (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., 184 Ohio App.3d 317, 2009-Ohio-5078, 920 N.E.2d 1017 

(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