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Gaul v. Burks Development Corp.1/30/1997
DATE OF ANNOUNCEMENT OF DECISION JANUARY 30, 1997
JUDGMENT AFFIRMED.
This case came on for hearing upon the accelerated calendar of our court pursuant to App. R. 11.1 and Local R. 25, the records from the court of common pleas, and the briefs of counsel. This docket allows for statements of the reasons for our decision to be in brief and conclusionary form.
Construction Unlimited appeals from a judgment of the common pleas court which denied its April 10, 1995 motion to vacate both a 1992 judgment entry of foreclosure and a 1993 judgment of forfeiture, each entered in case No. 173926, and thereby implicitly denied its motion to intervene in that case.
In November 1990, Burks Development Corporation and Notre Dame Classroom Apt. Ltd. Partnership hired Construction Unlimited, a general contractor, to perform labor and supply materials for renovation of the former Notre Dame School located at 1325 Ansel Road in Cleveland, Ohio. At that time, Construction Unlimited did not know that Francis E. Gaul as Treasurer of Cuyahoga County, had filed a foreclosure proceeding against the property in August, 1989, because Burks Development Corporation owed delinquent real estate taxes on the property. That foreclosure did not name Construction Unlimited as a party defendant because it had no interest in the property at the time the suit was filed.
On April 30, 1991, the court foreclosed the owner's interest in the property and issued an order of sale on July 19, 1991. The record reflects that on July 10, 1991, Construction Unlimited filed a mechanic's lien on the property for unpaid work and materials and on May 5, 1992, in case No. 231618, filed its own foreclosure on the property but never referenced the pending foreclosure action. Subsequently, on August 24, 1992, the court issued an amended order of sale which reclassified the property as, "other land," but the property did not sell at Sheriff's sales either on February 16, 1993 or March 2, 1993 and the court forfeited the land to the State of Ohio on March 26, 1993. Thereafter, the City of Cleveland acquired the property from the state for $31,066.00 by deed recorded on July 26, 1993.
On April 10, 1995, Construction Unlimited filed a motion to intervene and to vacate the judgments of foreclosure and forfeiture which had been entered in 1992 and 1993 when Burks Development had an interest in the property. In response to those motions, the City of Cleveland, as owner of the property, also filed a motion to intervene, which the court granted. The trial court then denied Construction Unlimited's motion to vacate thereby implicitly denying its motion to intervene and Construction Unlimited now appeals and raises one assignment of error for our review.
I. THE LOWER COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO INTERVENE PURSUANT TO OHIO CIVIL RULE OF PROCEDURE 24(A).
Construction Unlimited claims the trial court erred in denying its 1995 motion to vacate the 1992 judgment of foreclosure and thereby declining to permit it to intervene because it filed its motion within one year after it discovered the foreclosure and the recording of the deed transferring the property to the City of Cleveland. It also alleges the county denied it due process by not providing notice of the pending case at the time it filed case No. 231618, and finally maintains the doctrine of lis pendens does not apply to this case.
The appellee Francis E. Gaul and intervenor the City of Cleveland, urge the trial court properly denied the motion to vacate in accordance with R.C. 5723.13, and further contend that no due process rights exist because Construction Unlimited never obtained
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