[Cite as Hamilton v. Mansfield Motorsports Speedway, L.L.C., 2012-Ohio-2446.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BART W. HAMILTON, TREASURER 

RICHLAND COUNTY, OHIO 

 Plaintiff-Appellee 

-vsMANSFIELD MOTORSPORTS 

SPEEDWAY, LLC, et al., 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 11 CA 103 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 10 CV 1287D 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: May 31, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JAMES J. MAYER, JR. ROBERT A. FRANCO 

PROSECUTING ATTORNEY 1007 Lexington Avenue 

STEPHEN M. WILDERMUTH Mansfield, Ohio 44907 

ASSISTANT PROSECUTOR 

38 South Park Street 

Mansfield, Ohio 44902 
Richland County, Case No. 11 CA 103 2

Wise, J. 

{¶1} Defendant-Appellant Mansfield Motorsports Speedway, LLC appeals the 

October 5, 2011, decision of the Court of Common Pleas of Richland County, Ohio, 

granting summary judgment in favor of Plaintiff-Appellee Bart W. Hamilton, Treasurer, 

Richland County, Ohio, and denying Defendant-Appellant’s motion for default judgment 

on its counterclaim. 

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts and procedural history are as follows: 

{¶3} From 2001 through 2004, Appellant, Mansfield Motorsports Speedway, 

LLC, made improvements to its real property, including installation and repair of a 

grandstand with private viewing boxes, a ticket box office, concessions stand, 

restrooms, a flag stand, specialty safety fencing, and repairs to the oval race track 

surface. 

{¶4} Upon completion of the project, the Richland County Auditor, Patrick 

Dropsey, taxed the improvements as real property. In September of 2009, the Tax 

Commissioner of Ohio, Joseph Testa, assessed use tax on these same improvements. 

{¶5} It is conceded that Appellant did not challenge the 2004 determination of 

the Auditor via R.C. §5715.19, nor did Appellant pursue or challenge the 2009 

determination of the Tax Commissioner that the improvements constituted personal 

property. 

{¶6} In July of 2010, the Tax Commissioner filed a use tax lien against 

Appellant in the amount of $676,674.31. 
Richland County, Case No. 11 CA 103 3

{¶7} On September 28, 2010, Appellee Richland County Treasurer filed a 

foreclosure complaint against Appellant (Case No. 10-CV-1287D) for non-payment of 

real property taxes, which is the subject of this appeal. 

{¶8} On November 30, 2010, Appellant Mansfield Motorsports Speedway filed 

a motion for leave to file an amended answer and counter-claim 

{¶9} By Entry filed December 6, 2010, the trial court granted leave to Appellant 

to file an amended answer and counter-claim. 

{¶10} On February 17, 2011, Appellant filed a complaint for declaratory 

judgment and mandamus given the conflicting tax assessments. In that action, 

Appellant sought a declaration that the improvements in question constituted personal 

property subject to a use tax. In the alternative, Appellant sought a finding that the 

improvements were real property not subject to a use tax. Appellant also requested a 

writ of mandamus to order the Auditor to reclassify the improvements as personal 

property and remove them from county real estate tax rolls or, in the alternative, order 

the Auditor to determine if the improvements were real or personal property. See Stark 

County Common Pleas Court Case No. 11CV230D. 

{¶11} By Order filed May 2, 2011, upon motion filed by Appellant Mansfield 

Motorsports Speedway, the trial court stayed the foreclosure proceedings in the instant 

case pending final resolution of the declaratory judgment action. 

{¶12} In the declaratory judgment action, the defendants therein filed motions to 

dismiss, claiming the trial court lacked jurisdiction as the assessment of real property 

taxes and use taxes should have been appealed to the Board of Revision and the Board 

of Tax Appeals, respectively. 
Richland County, Case No. 11 CA 103 4

{¶13} By judgment entry filed June 13, 2011, the trial court dismissed the 

declaratory judgment action, finding it lacked jurisdiction to hear the case, Appellant 

failed to state a claim upon which relief can be granted, Appellant had or has adequate 

legal remedies, and laches barred Appellant's claims. 

{¶14} On July 8, 2011, Appellee Treasurer filed a motion to lift the stay, which 

was granted on August 4, 2011, 

{¶15} On August 8, 2011, Appellee Treasurer filed a motion for summary 

judgment. 

{¶16} On August 16, 2011, Appellant filed its memorandum in opposition to 

Appellee’s motion for summary judgment. 

{¶17} On August 16, 2011, Appellant also filed its own motion for summary 

judgment and motion for default judgment on its counterclaim. 

{¶18} On September 19, 2011, the Richland County Auditor filed a motion to 

intervene. 

{¶19} On September 19, 2011, Appellee Treasurer filed its response in 

opposition to Appellant’s motion for summary and default judgment. 

{¶20} By Judgment Entry filed October 5, 2011, the trial court granted summary 

judgment in favor of Plaintiff-Appellee Bart W. Hamilton, Treasurer, Richland County, 

Ohio, and denied Defendant-Appellant’s motion for default and summary judgment on 

its counterclaim. The trial court also denied the county auditor’s motion to intervene for 

failure to comply with Loc.R. 1.04. 

{¶21} This Court, by Opinion dated March 7, 2012, affirmed the trial court’s 

dismissal of the declaratory judgment action, finding that not all of the statutory 
Richland County, Case No. 11 CA 103 5

administrative procedures to challenge the tax assessments were exhausted and 

therefore, a declaratory judgment action was not the appropriate vehicle to challenge 

the determinations of the Auditor and the Tax Commissioner on the taxation of the 

improvements. This Court did, however, find that there still remain remedies available 

where laches may not lie. See State of Ohio, Ex Rel Mansfield Motorsports Speedway, 

LLC, et al. v. Patrick W. Dropsey, Richland County Auditor, et al., Richland App. No. 

2011 CA 0065, 2012-Ohio-968. 

{¶22} Appellant now appeals the trial court’s October 5, 2011, decision in the 

instant foreclosure case, assigning the following assignments of error. 

ASSIGNMENTS OF ERROR

{¶23} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

IN FAVOR OF PLAINTIFF-APPELLEE (AT THE VERY LEAST, A MATERIAL FACT 

REMAINS TO BE LITIGATED). 

{¶24} “II. THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS 

NO CONSTITUTIONAL VIOLATION IN THIS CASE. 

{¶25} “III. THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANTAPPELLANT TO PRESENT A DEFENSE THAT THE TAX GIVING RISE TO 

PLAINTIFF-APPELLEE'S FORECLOSURE ACTION WAS AN UNCONSTITUTIONAL 

ASSESSMENT. 

{¶26} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN 

CONCLUDING THAT NO RESPONSIVE PLEADING WAS REQUIRED ON 

DEFENDANT-APPELLANT'S COUNTERCLAIM, AND THAT DEFENDANTAPPELLANT WAS NOT ENTITLED TO SUMMARY AND DEFAULT JUDGMENT. 
Richland County, Case No. 11 CA 103 6

{¶27} “V. THE TRIAL COURT ERRED IN CONCLUDING THAT COLLATERAL 

ESTOPPEL BARRED DEFENDANT-APPELLANT'S COUNTERCLAIM AND 

DEFENSE. 

{¶28} “VI. THE TRIAL COURT ERRED IN CONCLUDING THAT LACHES 

BARRED DEFENDANT-APPELLANT'S COUNTERCLAIM AND DEFENSE.” 

I., II., III. 

{¶29} In its first three Assignments of Error, Appellant argues that the trial court 

erred in granting summary judgment in favor of Appellee. We disagree. 

“Summary Judgment Standard”

{¶30} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides, 

in pertinent part: 

{¶31} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence in the pending case, 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 judgment as a matter of law. * * * A summary judgment shall not be 

rendered unless it appears from such evidence or stipulation and only therefrom, 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, such party being 

entitled to have the evidence or stipulation construed most strongly in his favor.” 
Richland County, Case No. 11 CA 103 7

{¶32} Pursuant to the above rule, a trial court may not enter a summary 

judgment if it appears a material fact is genuinely disputed. The party moving for 

summary judgment bears the initial burden of informing the trial court of the basis for its 

motion and identifying those portions of the record that demonstrate the absence of a 

genuine issue of material fact. The moving party may not make a conclusory assertion 

that the non-moving party has no evidence to prove its case. The moving party must 

specifically point to some evidence which demonstrates the non-moving party cannot 

support its claim. If the moving party satisfies this requirement, the burden shifts to the 

non-moving party to set forth specific facts demonstrating there is a genuine issue of 

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing 

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107. 

{¶33} It is based upon this standard that we review Appellant’s assignments of 

error. 

{¶34} In the case sub judice, the county treasurer initiated the foreclosure action 

against Appellant for unpaid real estate taxes. 

{¶35} In its Amended Answer and Counterclaim, Appellant challenged the real 

property tax assessment as unconstitutional. Appellant also filed the declaratory 

judgment action described above to challenge the tax assessments, seeking a 

declaration that the improvements at issue in this case were personal property and thus 

subject to use tax, or in the alternative, were real estate improvements and thus not 

subject to use tax. 
Richland County, Case No. 11 CA 103 8

{¶36} As this Court stated in the Declaratory Judgment action, at no time prior to 

the filing of the foreclosure action did Appellant avail himself of the statutory 

administrative procedures to challenge the tax assessments. 

{¶37} The exhaustion of administrative remedies doctrine requires that where an 

administrative remedy is available, relief must be sought by exhausting the remedy 

before a court will act. Nemazee v. Mt. Sinai Med. Ctr. (1990), Ohio St.3d 109, 56 Ohio 

St.3d 109, 564 N.E.2d 477,syllabus. 

{¶38} In the appeal of the declaratory judgment, this Court found that R.C. 

§5717.02 governs complaints involving tax assessments by the tax commissioner and 

states the following in pertinent part: 

{¶39} "Except as otherwise provided by law, appeals from final determinations 

by the tax commissioner of any preliminary, amended, or final tax assessments, 

reassessments, valuations, determinations, findings, computations, or orders made by 

the commissioner may be taken to the board of tax appeals by the taxpayer, by the 

person to whom notice of the tax assessment, reassessment, valuation, determination, 

finding, computation, or order by the commissioner is required by law to be given ***. 

{¶40} "Such appeals shall be taken by the filing of a notice of appeal with the 

board, and with the tax commissioner if the tax commissioner's action is the subject of 

the appeal ***. The notice of appeal shall be filed within sixty days after service of the 

notice of the tax assessment, reassessment, valuation, determination, finding, 

computation, or order by the commissioner or redetermination by the director has been 

given as provided in section 5703.37, 5709.64, 5709.66, or 5733.42 of the Revised 

Code." 
Richland County, Case No. 11 CA 103 9

{¶41} This Court went on to find that R.C. §5715.19 governs complaints 

involving tax assessments by the county auditor. Subsection (A)(1) states the following 

in pertinent part: 

{¶42} "(1) Subject to division (A)(2) of this section, a complaint against any of the 

following determinations for the current tax year shall be filed with the county auditor on 

or before the thirty-first day of March of the ensuing tax year or the date of closing of the 

collection for the first half of real and public utility property taxes for the current tax year, 

whichever is later[.]*** 

{¶43} "***The county auditor shall present to the county board of revision all 

complaints filed with the auditor." 

{¶44} As in the previous appeal, we likewise find the tax foreclosure action is not 

the appropriate vehicle to challenge the determinations of the Auditor and the Tax 

Commissioner, neither of which are parties to this action, on the taxation of the 

improvements. 

{¶45} Appellant’s first three Assignments of Error are overruled. 

IV., V., VI. 

{¶46} In its remaining Assignments of Error, Appellant argues that the trial court 

erred in determining that no responsive pleading was required on its counterclaim and 

in not granting summary and default judgment on same. We disagree. 

{¶47} The trial court, in its summary judgment ruling, found that Appellant was 

not entitled to summary and default judgment on its counterclaim as such counterclaim 

“simply denies that the tax was assessed against its real property.” As such, the trial 

court found that such was “a defense which does not require an answer”. 
Richland County, Case No. 11 CA 103 10

{¶48} Upon review, we find that Appellant, in its counterclaim, alleged that 

Appellee Treasurer had been improperly including personal property in determining the 

value of its real property for tax purposes and that as a result, it had been over-taxed. 

{¶49} The problem with Appellant’s argument is that the Treasurer, the Appellee 

and Plaintiff in this case, is only responsible for collection of taxes. It is the Auditor, not 

the Treasurer, whose statutory obligation is to categorize property as real or personal 

and to determine how much tax is owed. 

{¶50} Further, as stated above, Appellant in this case failed to appeal his tax 

assessment and request a hearing with Richland County Board of Revision, therein 

failing to exhaust all of its administrative remedies. 

{¶51} Based on the foregoing, we find that Appellant’s counterclaim failed to 

state a claim upon which relief could be granted and that such did not require an 

Answer. 

{¶52} Based on the foregoing, we find the trial court did not err in denying 

Appellant’s motion for summary and default judgment on its counterclaim. 

{¶53} Appellant’s assignments of error are overruled. 

{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Richland County, Ohio, is affirmed. 

By: Wise, J. 

Gwin, P. J., concurs. 

Edwards, J., dissents. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0509 
Richland County, Case No. 11 CA 103 11

 
Richland County, Case No. 11 CA 103 12

EDWARDS, J., DISSENTING OPINION 

{¶55} I respectfully dissent from the analysis and disposition of this case by the 

majority. 

{¶56} In State of Ohio, Ex Rel Mansfield Motorsport Speedway, LLC, et al. v. 

Patrick W. Dropsey, Richland County Auditor, et al., Richland App. No. 2011 CA 0065, 

2012-Ohio-968, I wrote a dissenting opinion stating that the trial court should have 

allowed the declaratory judgment action to proceed as to the years in which the 

appellant was double taxed. 

{¶57} Therefore, until such declaratory judgment action occurs and has an end 

result, a grant of summary judgment on the foreclosure action for real estate taxes is 

premature. 

____________________________________ 

Judge Julie A. Edwards 

JAE/rmn 
Richland County, Case No. 11 CA 103 13

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BART W. HAMILTON, TREASURER ; 

RICHLAND COUNTY, OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MANSFIELD MOTORSPORTS : 

SPEEDWAY, LLC, et al., : 

 : 

 Defendant-Appellant : Case No. 11 CA 103 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. 

 Costs assessed to Appellant. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES