[Cite as Oliver v. Marysville, 2018-Ohio-1986.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

BETTY OLIVER, 

 PLAINTIFF-APPELLANT, CASE NO. 14-18-01 

 v. 

CITY OF MARYSVILLE, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Union County Common Pleas Court 

Trial Court No. 2016-CV-0003 

Judgment Affirmed 

Date of Decision: May 21, 2018 

 

APPEARANCES: 

 

Aaron E. Michel for Appellant 

 Patrick Kasson and Kari D. Hehmeyer for Appellee, 

 City of Marysville 
Case No. 14-18-01 

-2- 

ZIMMERMAN, J. 

{¶1} This appeal is brought by Betty Oliver, the Plaintiff-Appellant 

(“Appellant”) herein, from the judgment of the Union County Court of Common 

Pleas, granting summary judgment in favor of Defendant-Appellees, the City of 

Marysville, the Union County Auditor, and the Union County Treasurer, in a 

declaratory judgment and injunctive relief action. On appeal, Appellant asserts that 

the trial court erred: 1) by finding that the nuisance abatement (relative to her 

property) was performed in accordance with the prior order of the court; 2) by 

finding that the City of Marysville was immune from tort damages; 3) by finding 

that there were no genuine issues of material fact regarding the trial court’s prior 

order and the validity of a tax lien on Appellant’s property; 4) by concluding that 

R.C. §715.261 does not establish a deadline for the certification of abatement costs; 

and 5) by concluding that the certification of abatement costs was proper. For the 

reasons that follow, we affirm the decision of the trial court. 

Factual Background 

{¶2} In 2006 Betty Oliver and her husband, Charles Oliver, purchased real 

estate in Marysville, Ohio. (Doc. No. 1). Appellant reportedly suffered from a 

hoarding disorder, which resulted in the accumulation of possessions and debris on 

the property. (Id.). Attempts to have Appellant and her husband remove the debris 

from the property were unsuccessful, resulting in the Union County Board of Health 
Case No. 14-18-01 

-3- 

(the “Board”) and the City of Marysville (the “City”) filing a complaint against 

Appellant and her husband in 2011 in the Union County Common Pleas Court.1

 

(Id.). The Board and the City alleged in the complaint that because Appellant and 

her husband had failed to clean up the trash and debris on the real estate, a nuisance 

existed thereupon. (Id., Ex. A). The complaint further alleged that Appellant (and 

her husband) were not permitted to reside in the home because of their failure to 

obtain an occupancy permit after the home was renovated after a fire. 

{¶3} On May 23, 2012, the trial court issued its judgment entry in case 2011-

CV-0278, finding that the defendants were in default for failing to file an answer to 

the nuisance complaint. (Id.). Thus, based upon the information contained in the 

complaint, the trial court ordered that because a “no occupancy” permit had been 

issued by the Health Department, no one was permitted to reside in the home on the 

property. (Id.). Further, in granting a default judgment against Appellant, the trial 

court declared that a nuisance existed upon the property, and ordered Appellant to 

“clean up both [the] inside and outside of the home and that all trash, debris, excess 

material and/or junk be removed from the premises within the next thirty (30) days.” 

(Id.). The trial court’s order also provided notice that the failure to clean up the 

property would result in the Board and City “take all necessary steps and/or actions 

to abate the nuisance located at 325 South Plum Street” and that the Appellant would 

 

1

 Union County case number 2011-CV-0278. Further, Charles Oliver passed away while the 2011 case was 

pending. 
Case No. 14-18-01 

-4- 

be fully liable to the Board and the City for the total costs incurred in abating the 

nuisance located upon the real property. (Id.). Finally, the trial court ordered that 

all costs incurred by the Board and the City in abating the nuisance be certified to 

the Union County Auditor for inclusion in the real estate taxes due upon the real 

estate.2

 (Id.). 

{¶4} The Appellant failed to abate the nuisance on her property within the 

thirty-day (30) period ordered by the trial court, and resulted in the City hiring 

SERVPRO (“SERVPRO”) to clean up the property. (Doc. No. 1; Ex. E). 

SERVPRO cleaned the property on September 14, 2012, at a cost of $12,381.75, 

which the City paid. (Id.). 

{¶5} Nearly two (2) years later, on June 14, 2014, Appellant’s property was 

sold for $27,000. (Doc. No. 1, Ex. H). Prior to closing on the property, the City 

presented Appellant with SERVPRO’s bill. (Id.). So, to complete the closing, 

Appellant and the buyer executed a “hold back and escrow agreement” with the title 

company, which identified that there was an unresolved property bill (from 

SERVPRO), payment of which would be resolved after the real estate closing. 

(Doc. No. 13, Ex. A). Thus, the proceeds from the sale of Appellant’s property were 

placed into an escrow account. (Id.). 

 

2

 Appellant did not appeal the trial court’s judgment in case number 2011-CV-0278. 
Case No. 14-18-01 

-5- 

Procedural History 

{¶6} On January 5, 2016, Appellant filed a complaint in the trial court for a 

declaratory judgment and injunction (in Case Number 16-CV-0003). (Doc. No. 1). 

Appellant listed the Board of Health, the City of Marysville, the Union County 

Auditor, the Union County Treasurer, and Schultze, Howard, & Cox (as escrow 

agent) as defendants. (Id.). In her complaint, Appellant requested: that the trial 

court declare the tax lien invalid; order the Union County Auditor to strike the lien 

from the tax duplicate; enjoin the Union County Treasurer from collecting the lien; 

order the funds held in escrow be released to Appellant; and order the Board and the 

City to pay the costs of the action, including attorney fees. (Id.). 

{¶7} Thereafter, all named defendants filed answers to Appellant’s 

complaint. (Doc. Nos. 13, 14, 15, and 16). On March 9, 2016, defendant Schulze, 

Howard, & Cox filed a motion to deposit the escrowed funds of the sale with the 

court and to release them from compliance with the trial court’s scheduling order. 

(Doc. No. 21). Appellant did not object and the trial court granted the motion to 

interplead the funds. But, the trial court overruled defendant Schulze, Howard, & 

Cox’s request to be released from the scheduling order. (Doc. No. 24). However, 

on April 19, 2016, Appellant dismissed her claims against defendant Schulze, 

Howard, & Cox, due to the interpleading of funds with the court. (Doc. No. 29). 
Case No. 14-18-01 

-6- 

{¶8} On March 17, 2016, the Board filed a motion for judgment on the 

pleadings. (Doc. No. 23). The Board alleged that as a political subdivision it was 

immune from all tort claims. (Id.). The Board further claimed that the Appellant’s 

“taking” claim was not ripe. (Id.). Lastly, the Board claimed that Appellant had not 

pled the necessary requirements for “selective prosecution,” nor had she complied 

with the statute of limitations for filing tort claims against a political subdivision. 

(Id.). 

{¶9} On April 27, 2016, the City filed its motion for judgment on the 

pleadings. (Doc. No. 31). The City alleged that Appellant set forth no cause of 

action against it, and further, as a political subdivision, it was entitled to a grant of 

immunity. (Id.). The City also alleged that Appellant’s complaint was insufficient 

to maintain a selective prosecution claim, but even if it was sufficient, the selective 

prosecution claim was barred by res judicata. (Id.). Lastly, the City alleged that 

the Appellant did not have a valid claim for a “taking” and Appellant’s allegations 

in general were barred by the statute of limitations. (Id.). In response, Appellant 

filed a motion to amend her complaint on May 10, 2016 (Doc. No. 33), which was 

opposed to by the Board and the City. (Docs. 35 and 42). 

{¶10} On September 2, 2016, the Board filed a motion for summary 

judgment. (Doc. No. 46). Thereafter, the trial court issued its journal entry on 

September 8, 2016 ruling that the Board and the City were both political 
Case No. 14-18-01 

-7- 

subdivisions and immune from tort damages. (Id.). The trial court also found that 

the Appellant presented no facts that would support her claim of selective 

prosecution. (Id.). In regards to the declaratory judgment regarding the tax lien, the 

trial court found that there may be a set of facts that could support Appellant’s claim 

against the City. (Id.). However, with respect to the Board, the trial court sustained 

its motion for judgment on the pleadings, and dismissed the Board as a party to the 

litigation. (Id.). The trial court also granted the City’s motion for judgment on the 

pleadings on all claims except for the declaratory judgment claim regarding the 

validity of the tax lien. (Id.). Finally, the trial court granted Appellant leave to 

amend her complaint as to the declaratory judgment claim only. (Id.). 

{¶11} On September 16, 2016, Appellant filed an amended complaint for 

declaratory relief in the trial court. (Doc. No. 50). To the amended complaint, the 

remaining defendants, the Union County Auditor, the Union County Treasurer, and 

the City, all filed timely answers. (Doc. Nos. 53, 54). 

{¶12} On September 29, 2016, the City filed its motion for summary 

judgment. (Doc. No. 55). Attached to the motion for summary judgment was a 

document signed by the Appellant, the City Law Director, and others that read: 

“agreement to allow entry onto the premises in order to remove personal property 

that does not present a public health risk (the “Agreement”).” (Id., Ex. 1). Appellant 
Case No. 14-18-01 

-8- 

filed her response to the City’s motion for summary judgment on October 25, 2016. 

(Doc. No. 58). 

{¶13} Ultimately, on December 28, 2017, the trial court ruled on the 

summary judgment motions of the Appellant and the City. (Doc. No. 84). The trial 

court found that the Appellant had failed to properly authenticate her exhibits in her 

motion for summary judgment pursuant to Civ.R. 56(C). Thus, the trial court 

declined to consider such exhibits. (Id.). In regards to the City’s motion for 

summary judgment, the trial court found that neither the original journal entry nor 

R.C. 715.261 established a deadline for the certification of costs of the abatement. 

(Id.). The trial court further found that the tax lien on Appellant’s property was 

valid, pursuant to the judgment entry in case number 2011-CV-0278 and per R.C. 

715.26 and R.C. 715.261. (Id.). 

{¶14} Accordingly, the trial court sustained the City’s motion for summary 

judgment and dismissed Appellant’s complaint in its entirety. (Id.). 

{¶15} From this final judgment entry Appellant appeals, and presents the 

following assignments of error for our review: 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

PROPERTY OWNER BY FINDING FROM THE PLEADINGS 

THAT THE ABATEMENT WAS PROFESSIONAL AND IN 

ACCORDANCE WITH THE PRIOR ORDER OF THE COURT. 
Case No. 14-18-01 

-9- 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

PROPERTY OWNER BY FINDING THAT THE CITY OF 

MARYSVILLE WAS A POLITICAL SUBDIVISION 

PERFORMING A GOVERNMENTAL FUNCTION AND 

THEREFORE IMMUNE FROM TORT DAMAGES AND BY 

DISMISSING THE CLAIM FOR DAMAGES. 

ASSIGNMENT OF ERROR NO. III 

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

PROPERTY OWNER BY FINDING THAT THERE ARE NO 

GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER 

THE CITY COMPORTED WITH THE PRIOR COURT 

ORDER AUTHORIZING ABATEMENT AND 

CERTIFICATION OF COSTS AND WHETHER THE TAX 

LIEN IS VALID AND DISMISSING THE COMPLAINT WITH 

PREJUDICE. 

ASSIGNMENT OF ERROR NO. IV 

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

PROPERTY OWNER BY CONCLUDING THAT R.C. § 715.261 

DOES NOT ESTABLISH A DEADLINE FOR 

CERTIFICATION AND THAT CERTIFICATION OF COSTS 

SUBMITTED BY THE CITY IN 2014 IS NOT TIME BARRED 

OR OTHERWISE SUBJECT TO ANY TIME LIMITATION. 

ASSIGNMENT OF ERROR NO. V 

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

PROPERTY OWNER BY CONCLUDING THAT THE 

CERTIFICATION IS VALID BECAUSE IT COMPORTS 

WITH R.C. § 715.261 AT THE TIME OF THE ABATEMENT 

RATHER THAN AT THE TIME OF THE CERTIFICATION. 
Case No. 14-18-01 

-10- 

{¶16} Due to the interrelated nature of Appellant’s assignments of error and 

for ease of analysis, we have consolidated Appellant’s first and second assignments 

of error. 

Appellant’s First and Second Assignments of Error 

{¶17} Appellant’s first and second assignments of error address the trial 

court’s ruling on the City’s motion for judgment on the pleadings. In her first 

assignment of error, Appellant argues that the trial court erred by finding that the 

abatement was professionally performed in accordance with the prior trial court 

order (in case number 2011-CV-0278). In her second assignment of error, 

Appellant argues that the trial court erred by finding that the City was a political 

subdivision performing a governmental function, and as such, was immune from 

tort damages. For the reasons that follow, we overrule Appellant’s first and second 

assignments of error. 

Standard of Review 

{¶18} “A trial court reviews a Civ.R. 12(C) motion for judgment on the 

pleadings using the same standard of review as a Civ.R. 12(B)(6) motion for failure 

to state a claim upon which relief may be granted.” Walker v. City of Toledo, 6th 

Dist. Lucas No. L-15-1240, 2017-Ohio-416, ¶ 18. A reviewing court “‘must 

presume that all factual allegations of the complaint are true and make all reasonable 
Case No. 14-18-01 

-11- 

inferences in favor of the nonmoving party.’” Id. quoting Mitchell v. Lawson Milk 

Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). 

{¶19} “In ruling on the motion, a court is permitted to consider both the 

complaint and the answer as well as any material incorporated by reference or 

attached as exhibits to those pleadings.” Id. at ¶ 19. In doing so, the court must 

construe the material allegations in the complaint, with all reasonable inferences 

drawn therefrom, as true and in favor of the non-moving party. A court granting the 

motion must find that the plaintiff can prove no set of facts in support of the claims 

that would entitle him or her to relief. Id. quoting Frazier v. Kent, 11th Dist. Portage 

Nos. 2004-P-0077, 2004-P-0096, 2005-Ohio-5413, ¶ 14. 

{¶20} “Because a Civ.R. 12(C) motion tests the legal basis for the claims 

asserted in a complaint, our standard of review is de novo.” Id. at ¶ 20. 

Abatement Ruling 

{¶21} Initially, Appellant attacks the actions of the City (through 

SERVPRO) in removing the flooring, drywall, countertops, appliances and personal 

property (in a locked shed) from her real property. Appellant states that the burden 

was on the City to prove that the items on her property constituted a public nuisance 

and their removal was necessary for the abatement of such nuisance. In support of 

her argument, Appellant directs us to a series of decisions rendered by the Second 

District Court of Appeals in City of Englewood v. Turner. Englewood v. Turner, 
Case No. 14-18-01 

-12- 

178 Ohio App.3d 179, 2008-Ohio-4637, 897 N.E.2d 213. See also, Englewood v. 

Turner, 168 Ohio App.3d 41, 2006-Ohio-2667, 858 N.E.2d 431; Turner v. 

Englewood, 191 Ohio App.3d 1, 2010-Ohio-5881, 944 N.E.2d 731. In these cases, 

the Second District Court ruled that the property owner was entitled to dispute the 

lien on her property (for demolition expenses) by filing a request for declaratory 

judgment, pursuant to R.C. 715.261. Id. at ¶ 55. See also, Englewood v. Turner, 

supra; Turner v. Englewood, supra. However, we find Appellant’s case is 

distinguishable from the Turner cases. In Turner, the Second District found that 

“there ha[d] never been a judicial determination of a public nuisance, nor did Turner 

have an opportunity to be heard at an administrative level with a judicial review of 

whether a public nuisance existed.” Id. at ¶ 54. To the contrary, in the case before 

us, there was a judicial determination (by way of default judgment) finding 

Appellant’s property to be a nuisance. Thus, because Appellant had an opportunity 

to be heard at the trial court level to dispute whether her property was a nuisance 

and failed to do so, Turner is factually distinguishable to the case before us. 

{¶22} Moreover, Appellant could have appealed the judgment of the trial 

court entry in case number 2011-CV-0278 to present this argument but failed to do 

so. As such, since “[a] valid, final judgment rendered upon the merits bars all 

subsequent actions based upon any claim arising out of the transaction or occurrence 

that was the subject matter of the previous action,” Appellant may not raise this 
Case No. 14-18-01 

-13- 

issue now on appeal. Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, 

653 N.E.2d 226 (1995) 

Political Immunity Ruling 

{¶23} Next, in her second assignment of error, Appellant asserts that the trial 

court erred in its determination that the City was a political subdivision performing 

a governmental function, and as such, was immune from tort damages. 

{¶24} The Political Subdivision Tort Liability Act, codified in R.C. Chapter 

2744, governs political subdivision liability and immunity. See generally, Vacha v. 

N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 12. In 

Ohio, courts apply a three-tiered analysis to determine whether a political 

subdivision is entitled to immunity under R.C. Chapter 2744. State ex rel. Rohrs. 

v. Germann, 3rd Dist. Henry No. 7-12-21, 2013-Ohio-2497, ¶ 28. “First, the court 

must determine whether the entity claiming immunity is a political subdivision and 

whether the alleged harm occurred in connection with either a governmental or a 

proprietary function.” R.C. 2744.02(A)(1); Brady v. Bucyrus Police Dept., 194 

Ohio App.3d 574, 2011-Ohio-2460, 957 N.E.2d 339, ¶ 44 (3rd Dist.). “In the 

second tier of analysis, R.C. 2744.02(B) provides five exceptions that may lift the 

broad immunity provided for in R.C. 2744.02(A).” Jones v. Delaware City School 

Dist. Bd. of Edn., 2013-Ohio-3907, 995 N.E.2d 1252, ¶ 19 (5th Dist.). If an 

exception exists under the second tier of analysis, “‘immunity can be reinstated if 
Case No. 14-18-01 

-14- 

the political subdivision can successfully argue that any of the defenses contained 

in R.C. 2744.03 applies,’” under the third tier of analysis. McNamara v. Marion 

Popcorn Festival, 2012-Ohio-5578, 983 N.E.2d 818, ¶ 21 (3rd Dist.) quoting 

Hortman v. City of Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d 

716, ¶ 12. 

{¶25} However, rather than present us with a three-tiered argument (to 

dispute that the City was a political subdivision entitled to immunity under R.C. 

Chapter 2744), Appellant again directs us to the trial court’s original judgment entry 

(in case number 2011-CV-0278) to dispute what the judgment entry authorized. As 

we stated above, Appellant’s attempt to raise issues now that should have been 

raised upon a direct appeal are barred by res judicata. 

{¶26} Nevertheless, assuming arguendo, that Appellant’s second assignment 

is not barred by the doctrine of res judicata, we find Appellant’s argument is without 

merit. As a general rule, political subdivisions are not liable in damages when the 

alleged harm occurs in connection with either a governmental or proprietary 

function. Brady, supra. R.C. 2744.01(F) defines a “political subdivision” as “a 

municipal corporation, township, county, school district, or other body corporate 

and politic responsible for governmental activities in a geographic area smaller than 

that of the state.” R.C. 2744.01. Here, it is undisputed that the City meets the 

statutory definition of a “political subdivision.” Furthermore, it is well-settled that 
Case No. 14-18-01 

-15- 

abating a nuisance is a governmental function. See, City of Mansfield v. Brister, 76 

Ohio St. 270, 81 N.E. 631 (1907), paragraph three of the syllabus (holding that “to 

cause any nuisance to be abated is governmental” in nature). Thus, the City meets 

the criteria in the first prong of analysis to establish political subdivision immunity. 

{¶27} However, the City’s general grant of immunity could be removed if an 

exception exists under R.C. 2744.02(B). R.C. 2744.02(B) provides: 

(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a 

political subdivision is liable in damages in a civil action for injury, 

death, or loss to person or property allegedly caused by an act or 

omission of the political subdivision or of any of its employees in 

connection with a governmental or proprietary function, as follows: 

(1) Except as otherwise provided in this division, 

political subdivisions are liable for injury, death, or loss 

to person or property caused by the negligent operation of 

any motor vehicle by their employees when the 

employees are engaged within the scope of their 

employment and authority. The following are full 

defenses to that liability: 

(a) A member of a municipal corporation 

police department or any other police agency 

was operating a motor vehicle while 

responding to an emergency call and the 

operation of the vehicle did not constitute 

willful or wanton misconduct; 

(b) A member of a municipal corporation 

fire department or any other firefighting 

agency was operating a motor vehicle while 

engaged in duty at a fire, proceeding toward 

a place where a fire is in progress or is 

believed to be in progress, or answering any 

other emergency alarm and the operation of 
Case No. 14-18-01 

-16- 

the vehicle did not constitute willful or 

wanton misconduct; 

(c) A member of an emergency medical 

service owned or operated by a political 

subdivision was operating a motor vehicle 

while responding to or completing a call for 

emergency medical care or treatment, the 

member was holding a valid commercial 

driver's license issued pursuant to Chapter 

4506. or a driver's license issued pursuant to 

Chapter 4507. of the Revised Code, the 

operation of the vehicle did not constitute 

willful or wanton misconduct, and the 

operation complies with the precautions of 

section 4511.03 of the Revised Code. 

(2) Except as otherwise provided in sections 3314.07 

and 3746.24 of the Revised Code, political subdivisions 

are liable for injury, death, or loss to person or property 

caused by the negligent performance of acts by their 

employees with respect to proprietary functions of the 

political subdivisions. 

(3) Except as otherwise provided in section 3746.24 of 

the Revised Code, political subdivisions are liable for 

injury, death, or loss to person or property caused by their 

negligent failure to keep public roads in repair and other 

negligent failure to remove obstructions from public 

roads, except that it is a full defense to that liability, when 

a bridge within a municipal corporation is involved, that 

the municipal corporation does not have the responsibility 

for maintaining or inspecting the bridge. 

(4) Except as otherwise provided in section 3746.24 of 

the Revised Code, political subdivisions are liable for 

injury, death, or loss to person or property that is caused 

by the negligence of their employees and that occurs 

within or on the grounds of, and is due to physical defects 

within or on the grounds of, buildings that are used in 
Case No. 14-18-01 

-17- 

connection with the performance of a governmental 

function, including, but not limited to, office buildings 

and courthouses, but not including jails, places of juvenile 

detention, workhouses, or any other detention facility, as 

defined in section 2921.01 of the Revised Code. 

(5) In addition to the circumstances described in 

divisions (B)(1) to (4) of this section, a political 

subdivision is liable for injury, death, or loss to person or 

property when civil liability is expressly imposed upon 

the political subdivision by a section of the Revised Code, 

including, but not limited to, sections 2743.02 and 

5591.37 of the Revised Code. Civil liability shall not be 

construed to exist under another section of the Revised 

Code merely because that section imposes a 

responsibility or mandatory duty upon a political 

subdivision, because that section provides for a criminal 

penalty, because of a general authorization in that section 

that a political subdivision may sue and be sued, or 

because that section uses the term “shall” in a provision 

pertaining to a political subdivision. 

R.C. 2744.02(B). 

{¶28} In our review of the listed exceptions to governmental immunity 

provided in R.C. 2744.02(B), we find that no acceptable immunity exception exists 

for the nuisance abatement in Appellant’s case. See generally, Leath v. Cleveland, 

8th Dist. Cuyahoga No. 102715, 2016-Ohio-105, ¶ 25 (holding that “actions in tort 

that have come to be termed a claim for “wrongful demolition” generally are barred 

by political subdivision immunity.”). 

{¶29} Accordingly, in our de novo review of the record, we find that the City 

was a political subdivision engaged in a governmental function, and that no 
Case No. 14-18-01 

-18- 

exception exists (under R.C. 2744.20) to remove the City’s general grant of 

immunity. And, because the record fails to demonstrate that the City’s immunity 

was removed by an exception pursuant to R.C. 2744.02(B), we conclude our 

analysis without the need to address the third tier of the political subdivision 

immunity test. 

{¶30} Thus, we find that the trial court did not commit error in granting the 

City’s motion for judgment on the pleadings on the abatement and immunity issues. 

Accordingly, Appellant’s first and second assignments of error are overruled. 

Appellant’s Third, Fourth, and Fifth Assignments of Error 

{¶31} Since Appellant’s third, fourth, and fifth assignments of error address 

the trial court’s ruling on summary judgment, we elect to address these assignments 

of error together. And, for the reasons that follow, we overrule Appellant’s third, 

fourth, and fifth assignments of error in their entirety. 

Standard of Review 

{¶32} An appellate court reviews a trial court’s decision on a motion for 

summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Trial courts may grant a motion for summary 

judgment when “(1) no genuine issue as to any material fact remains to be litigated, 

(2) the moving party is entitled to judgment as a matter of law, and (3) it appears 

from the evidence that reasonable minds can come to but one conclusion and that 
Case No. 14-18-01 

-19- 

conclusion is adverse to the party against whom the motion for summary judgment 

is made.” Hamilton v. Hector, 117 Ohio App.3d 816, 819, 691 N.E.2d 745, 747 

(3rd Dist.1997). The party moving for summary judgment bears the burden of 

showing that there is no genuine issue of material fact and that it is entitled to 

judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-93, 1996-

Ohio-107, 662 N.E.2d 264. Additionally, “‘upon appeal from summary judgment, 

the reviewing court should look at the record in the light most favorable to the party 

opposing the motion.’” Hector, supra quoting Campbell v. Hosp. Motor Inns, Inc., 

24 Ohio St.3d 54, 58, 493 N.E.2d 239 (1986). Once the moving party satisfies its 

burden, the nonmoving party “may not rest upon the mere allegations or denials of 

the party’s pleadings, but the party’s response, by affidavit or as otherwise provided 

in this rule, must set forth specific facts showing that there is a genuine issue for 

trial.” Civ.R. 56(E). 

City’s Compliance with the Prior Court Order Analysis 

{¶33} Appellant initially argues that the abatement order did not authorize 

the City to take the actions it took to abate the nuisance on Appellant’s property. 

Appellant further argues that it was the City’s burden to prove that Appellant’s 

property was a public nuisance and that its clean up was reasonably necessary to 

abate the nuisance. In support of this argument, Appellant again directs us to Second 

District’s decision in City of Englewood v. Turner, supra. 
Case No. 14-18-01 

-20- 

{¶34} However, as we have previously discussed, Turner is distinguishable 

from the case before us because there was a judicial proceeding determining that 

Appellant’s property constituted a public nuisance.3

 Specifically, the trial court’s 

abatement order (in case number 2011-CV-0278) provided, in its relevant part, as 

follows: 

IT IS, FURTHER, ORDERED, that the Plaintiffs, Union County 

Board of Health and the City of Marysville, Ohio, be granted 

judgment by default against the Defendants, Charles A. Oliver and 

Betty J. Oliver, and the Court declares that a nuisance exists upon the 

property located at 325 S Plum Street, Marysville, Ohio, 43040. 

IT IS, FURTHER, ORDERED, that the Defendants, Charles A. Oliver 

and Betty J. Oliver, are hereby permanently enjoined from 

maintaining a nuisance upon their real estate located at 325 South 

Plum Street, Marysville, Ohio and the Defendants are Ordered to 

cease violating the Ohio Revised Code and the Ohio Administrative 

Code in relation to maintaining a nuisance in and upon the real estate

at 325 South Plum Street, Marysville, Ohio, 43040. 

IT IS, FURTHER, ORDERED, that the Defendants, Charles A. Oliver 

and Betty J. Oliver, shall cause the real estate located at 325 South 

Plum Street, Marysville, Ohio, 43040 to be cleaned up both inside and 

outside the home and that all trash, debris, excess material and/or junk 

be removed from the premises within the next thirty (30) days. 

IT IS, FURTHER, ORDERED, that the Defendants, Charles A. Oliver 

and Betty J. Oliver, are hereby permanently enjoined and shall cease 

maintaining an open dump as prohibited by the Ohio Administrative 

Code; 

IT IS, FURTHER, ORDERED, that, should the Defendant’s [sic], 

Charles A. Oliver and Betty J. Oliver, fail to clean up the inside and 

outside of the property located at 325 South Plum Street, Marysville, 

 

3 See, Union County Common Pleas Court case number 2011-CV-0278. 
Case No. 14-18-01 

-21- 

Ohio, make necessary repairs, and clean up all trash, debris, and junk, 

that, in that event, that the Plaintiff’s [sic], Union County Board of 

Health and the City of Marysville, Ohio, shall take all necessary steps 

and/or actions to abate the nuisance located at 325 South Plum Street, 

Marysville, Ohio, and the Defendants, Charles A. Oliver and Betty J. 

Oliver, shall be fully liable, jointly and severally, to the Plaintiffs for 

the total amount of the costs incurred in abating the nuisance located 

in and upon the real estate located at 325 South Plum Street, 

Marysville, Ohio. In addition, should the Plaintiffs incur any costs for 

the abatement of the nuisance at 325 South Plum Street, Marysville, 

Ohio, all said costs shall be certified to the Union County Auditor for 

inclusion with the real estate taxes due upon the real estate. 

(Emphasis added.) (Doc. No. 1, Ex. A) 

{¶35} Thus, Appellant’s attempts to analogize the facts of her case with 

Turner are misplaced. In the case before us, the abatement order was issued in a 

judicial proceeding that specifically found Appellant’s property to be a nuisance. 

The order further authorized the City to take all necessary steps to abate that 

nuisance. 

{¶36} Moreover, it is clear to us that since the Appellant failed to clean up 

her property, or contest the nuisance ruling in the trial court or upon appeal, she has 

waived her opportunity to argue whether or not a nuisance existed. Furthermore, 

the record reveals that Appellant entered into an agreement with the City that 

permitted it to enter her property and to remove her property prior to the City’s 
Case No. 14-18-01 

-22- 

hiring of SERVPRO. Accordingly, we find Appellant’s arguments under this 

portion of her assignments not well taken.4

 

Tax Lien Analysis 

{¶37} Lastly, Appellant argues that the tax lien assessed to her real estate 

taxes was invalid. Initially, we note that the trial court’s 2011 judgment entry 

specifically authorized the City to certify its costs (of abating Appellant’s nuisance) 

to the Union County Auditor and be assessed to her real estate taxes. (See, Doc. No. 

1, Ex. A). 

{¶38} However, Appellant argues that the City failed to submit a valid 

certification of costs in accordance with 715.261(B). Specifically, Appellant 

contends that because the City did not certify the abatement costs within one year 

from the date the costs were incurred, the lien placed on the property was invalid, 

pursuant to R.C. 715.261(B). We disagree. 

R.C. 715.261(B) states, in its pertinent part: 

(B) A municipal corporation or its agent pursuant to division (E) of 

this section may collect the total cost of abatement activities by any 

of the methods prescribed in division (B)(1), (2), or (3) of this section. 

(1) For each abatement activity in which costs are 

incurred, the clerk of the legislative authority of the 

municipal corporation or its agent pursuant to division (E) 

of this section may certify the total costs of each 

 

4

 We also note that Appellant argues that the trial court’s prior order only authorized the City to act on the 

outside of the home, and not within the residence. We are not persuaded as the plain language of the trial 

court’s 2011 order specifically orders Appellant and/or the City to clean up the inside and outside of the 

property. (Doc. No. 1, Ex. A). 
Case No. 14-18-01 

-23- 

abatement activity, together with the parcel number or 

another proper description of the lands on which the 

abatement activity occurred, the date the costs were 

incurred for each abatement activity, and the name of the 

owner of record at the time the costs were incurred for 

each abatement activity, to the county auditor who shall 

place the costs as a charge upon the tax list and duplicate. 

The costs are a lien upon such lands from and after the 

date the costs were incurred. The costs shall be collected 

as other taxes and returned to the municipal corporation 

or its agent pursuant to division (E) of this section, as 

directed by the clerk of the legislative authority in the 

certification of the total costs or in an affidavit from the 

agent delivered to the county auditor or county treasurer. 

The placement of the costs on the tax list and duplicate 

relates back to, and is effective in priority, as of the date 

the costs were incurred, provided that the municipal 

corporation or its agent pursuant to division (E) of this 

section certifies the total costs within one year from the 

date the costs were incurred.

(2) If a lien placed on a parcel of land pursuant to this 

division is extinguished as provided in division (H) of this 

section, a municipal corporation may pursue the remedy 

available under division (B)(2) of this section to recoup 

the costs incurred with respect to that parcel from any 

person that held title to the parcel at the time the costs 

were incurred. 

(3) The municipal corporation or its agent pursuant to 

division (E) of this section may commence a civil action 

to recover the total costs from the person that held title to 

the parcel at the time the costs were incurred. 

(4) A municipal corporation or its agent pursuant to 

division (E) of this section may file a lien on a parcel of 

land for the total costs incurred under this section with 

respect to the parcel by filing a written affidavit with the 

county recorder of the county in which the parcel is 

located that states the parcel number, the total costs 
Case No. 14-18-01 

-24- 

incurred with respect to the parcel, and the date such costs 

were incurred. The municipal corporation or its agent 

may pursue a foreclosure action to enforce the lien in a 

court of competent jurisdiction or, pursuant to sections 

323.65 to 323.79 of the Revised Code, with the board of 

revision. The municipal corporation or its agent may elect 

to acquire the parcel by indicating such an election in the 

complaint for foreclosure or in an amended complaint. 

Upon the entry of a decree of foreclosure, the county 

sheriff shall advertise and offer the property for sale on at 

least one occasion. The minimum bid with regard to the 

sale of the foreclosed property shall equal the sum of the 

taxes, penalties, interest, costs, and assessments due and 

payable on the property, the total costs incurred by the 

municipal corporation or its agent with respect to the 

property, and any associated court costs and interest as 

authorized by law. An owner of the property may redeem 

the property by paying the minimum bid within ten days 

after the entry of the decree of foreclosure. If an owner 

fails to so redeem the property, and if the parcel is not sold 

for want of a minimum bid, the property shall be disposed 

of as follows: 

(a) If the municipal corporation or its agent 

elects to acquire the property, the parcel shall 

be transferred to the municipal corporation or 

its agent as if the property were transferred by 

all owners in title to the municipal 

corporation or its agent in lieu of foreclosure 

as provided in section 5722.10 of the Revised 

Code; 

(b) If the municipal corporation or its agent 

does not elect to acquire the property, the 

parcel shall be forfeited to the state or to a 

political subdivision or school district as 

provided in Chapter 5723. of the Revised 

Code. 
Case No. 14-18-01 

-25- 

(c) When a municipal corporation or its 

agent acquires property as provided in this 

division, the property shall not be subject to 

foreclosure or forfeiture under section 323.25 

or Chapter 5721. or 5723. of the Revised 

Code, and any lien on the property for costs 

incurred under this section or for any unpaid 

taxes, penalties, interest, charges, or 

assessments shall be extinguished. 

(Emphasis added). R.C. 715.261(B). In our review of Appellant’s argument, we 

find the plain language of R.C. 715.261(B) concerns the priority of a tax lien, not 

the validity. While Appellant asserts that R.C. 715.261(B) mandates that a tax lien 

be certified within one (1) year to be valid, we find no such provision therein. 

Rather, R.C. 715.26(B) addresses tax liens and validity as follows: 

(B) Provide for the inspection of buildings or other structures and for 

the removal and repair of insecure, unsafe, or structurally defective 

buildings or other structures under this section or section 715.261 of 

the Revised Code. At least thirty days prior to the removal or repair 

of any insecure, unsafe, or structurally defective building, the 

municipal corporation, or its agent pursuant to an agreement entered 

into under division (E) of section 715.261 of the Revised Code, shall 

give notice by certified mail of its intention with respect to such 

removal or repair to the holders of legal or equitable liens of record 

upon the real property on which such building is located and to owners 

of record of such property. The owners of record of such property or 

the holders of liens of record upon such property may enter into an 

agreement with the municipal corporation, or a county land 

reutilization corporation organized under Chapter 1724. of the 

Revised Code that is serving as the municipal corporation's agent, to 

perform the removal or repair of the insecure, unsafe, or structurally 

defective building. If an emergency exists, as determined by the 

municipal corporation, notice may be given other than by certified 

mail and less than thirty days prior to such removal or repair. If for 

any reason notice is not given, the lien provided for in section 715. 
Case No. 14-18-01 

-26- 

261 of the Revised Code as a result of such removal or repair is valid 

but shall be subordinate to any liens of prior record. If notice is 

provided in accordance with this section, a lien under section 715.261 

of the Revised Code for such removal or repair is effective on the date 

the municipal corporation or county land reutilization corporation 

incurred expenses in such removal or repair. 

(Emphasis added). R.C. 715.26(B). Accordingly, pursuant to R.C. 715.26 and R.C. 

715.261, we find that if notice for removal was not provided to an owner, the lien 

(for such costs for removal or repair) is valid but its priority will be subordinated to 

any prior liens of record. In the case before us, the record is void as to whether or 

not other liens existed on the property. Thus, we find Appellant’s reliance upon and 

interpretation of R.C. 715.261 misplaced. 

{¶39} Nonetheless, Appellant directs this Court to Thomas v. Bauschlinger, 

to support her contention that because the lien was not certified within one year from 

the date the costs were incurred, the assessment was improper and the lien is invalid. 

Thomas v. Bauschlinger, 9th Dist. Summit No. 25868, 2011-Ohio-4940, ¶ 9. 

However, unlike the city (plaintiff) in Bauschlinger, the City (plaintiff) in this case 

certified its costs to the Auditor pursuant to the judgment entry issued by the trial 

court, not pursuant to R.C. 715.261, as Appellant claims. There is nothing in 

Bauschlinger to indicate that there was a prior judicial determination that a nuisance 

existed on the assessed property, nor that there was a judgment entry authorizing 

the city in Bauschlinger to certify the costs of abating the nuisance to the county 

auditor for assessment. Thus, Bauschlinger is distinguishable from the case sub 
Case No. 14-18-01 

-27- 

judice because City pursued its abatement costs in accordance with the trial court’s 

2011 order. 

{¶40} We also find Appellant’s reliance on Atwater Township Board of 

Trustees v. Welling misplaced. In Welling, the record was void of any certification 

of abatement costs by the Township. Atwater Twp. Bd. Of Trustees v. Welling, 184 

Ohio App.3d 201, 2009-Ohio-4451, 920 N.E.2d 183, ¶ 47. While here, Appellant 

does not dispute that the City certified its costs, but rather disputes whether the costs 

were certified within the proper time frame, under R.C. 715.261(B). And, because 

we have already determined that R.C. 715.261(B) only affects the priority of liens, 

not the validity of liens, Welling is factually inapposite from the case before us. 

{¶41} Finally, Appellant asserts that the trial court should have applied R.C. 

715.261(B) at the time the City certified its abatement costs to the county auditor, 

not at the time the City incurred them. We note, for the reasons stated above, that 

we are not persuaded by Appellant’s argument (regarding R.C. 715.261) since the 

trial court’s original order (in case number 2011-CV-0278) authorized the City to 

certify its costs of abatement to the county auditor for assessment. 

{¶42} Nonetheless, even if R.C. 715.261 were applicable to the City’s 

actions, Appellant’s argument regarding the validity of the tax lien is without merit. 

We are aware that the Ohio legislature amended R.C. 715.261 in 2014 and that 

Appellant contends that the current version (as listed above) should apply to the 
Case No. 14-18-01 

-28- 

City’s certification process, not the version that was in effect at the time the City 

incurred its costs. However, Appellant’s argument ignores the plain language of 

both the current and former versions of R.C. 715.261, which establishes that “[t]he 

placement of the costs on the tax list and duplicate relates back to, and is effective 

in priority, as of the date the costs were incurred.” R.C. 715.261(B). Thus, neither 

code version indicates that the date of certification is the controlling date for 

application. Since the record before us demonstrates that the City complied with 

the certification requirements as of the date the costs were incurred, we are 

unpersuaded by Appellant’s argument. 

{¶43} Thus, in our de novo review, we find that no genuine issue of material 

fact is present with regards to the certification of costs and the City was entitled to 

judgment as a matter of law. Further, reasonable minds can come but to one 

conclusion, and that conclusion is adverse to the Appellant regarding the validity of 

the City’s tax lien and compliance with the prior trial court order. 

{¶44} Accordingly, we find Appellant’s arguments unpersuasive and we 

overrule Appellant’s third, fourth, and fifth assignments of error. 

Conclusion 

{¶45} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued, we overrule Appellant’s first, second, third, fourth, 
Case No. 14-18-01 

-29- 

and fifth assignments of error and affirm the judgment of the Union County 

Common Pleas Court. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/jlr