COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70713 : ACCELERATED DOCKET FRANCIS E. GAUL, TREASURER : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION BURKS DEVELOPMENT CORP., ET AL. : : : Defendant-Appellees : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 30, 1997 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-173926 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For appellee City of Cleveland: STEPHANIE TUBBS JONES SHARON SOBOL JORDAN Cuyahoga County Prosecutor Director of Law WILLIAM J. COYNE, JR. RICHARD BERTOVICH Assistant Prosecuting Attorney Assistant Director of Law Courts Tower - Ninth Floor Room 106 - City Hall 1200 Ontario Street 601 Lakeside Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44114 For Applicant for Intervention- For Bureau of Workers' Compensation: Appellant Construction Unlimited: ROBERT J. BELINGER KATE A. OKLOK JOSEPH D. CARELLA Assistant Attorney General 4200 Rockside Road, Suite 101 Revenue Recovery Section Independence, Ohio 44131 101 East Town Street Columbus, Ohio 43266 - 3 - PER CURIAM: 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. - 4 - 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. - 5 - 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 a property interest in this real estate. The issue, then, presented for resolution is whether the trial court erred in denying the motion to vacate thereby implicitly denying the motion to intervene. R.C. 5723.13 states as follows: Whenever real property in this state is sold under section 5721.01 to 5721.28, inclusive, or 5723.01 to 5723.19, inclusive, of the Revised Code, no action shall be commenced, nor shall any defense be set up to question the validity of the title of the purchases at such sale for any irregularity, - 6 - informality, or omission in the proceedings relative to the foreclosure, forfeiture, or sale, unless such action is commenced or defense set up within one year after the deed to such property is filed for record. (Emphasis added.) In Hunter v. Grier (1962), 173 Ohio St. 158, the court stated in its syllabus, *** under the broad provisions of what is now Section 5723.13, Revised Code, Which is a special statute remedial in nature, the purchaser of the land at a tax foreclosure sale ordinarily acquires a valid and unimpeachable title thereto in the absence of an attack on such title within one year from the date his tax deed is filed for record. In this case, the record reflects that the City of Cleveland recorded its deed on July 26, 1993, and Construction Unlimited filed its motion to vacate challenging the sale on April 10, 1995, more then one year from the recording date. Hence, Construction Unlimited is barred by the operation of R.C. 5723.13 from commencing such action. In addition, under the doctrine of lis pendens, third parties are prevented from acquiring an interest in the subject of a dispute once an action while it is pending. R.C. 2703.26 states as follows: When summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency. While pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff's title. - 7 - In Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio App.3d 65, the court stated in paragraph two of its headnote: In a mortgage foreclosure action all persons acquiring an interest in the property after service and during the pendency of the suit are bound by the decree and sale thereunder. In addition, while the foreclosure action is pending, no other action may be commenced concerning the property. In this case, then, since the County Treasurer had filed a foreclosure action against the property in August, 1989, and since Construction Unlimited had no interest in the property at that time, but only after it began work in November, 1990, by operation of R.C. 2703.26, Construction Unlimited could acquire no interest in the property as against the title owner since the statute charges all third persons with notice of the pending action. Accordingly, no due process violation occurred in this case. Finally, Construction Unlimited's claim that it is exempt from the doctrine of lis pendens because of R.C. 1311.21 is not well taken. It has been expressly stated by the General Assembly in Section 3 of S.B. 338, that R.C. 1311.21, is only applicable to projects contracted after January 1, 1992. Since Construction Unlimited contracted before this date, R.C. 1311.21 is not applicable to this case. In accordance with the foregoing, we find no merit to this assignment of error and it is overruled. - 8 - Judgment affirmed. - 9 - It is ordered that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. JAMES D. SWEENEY, CHIEF JUSTICE ANN DYKE, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .