Lancaster v. Sweetman Rental, L.L.C. ( 2013 )

[Cite as Lancaster v. Sweetman Rental, L.L.C., 2013-Ohio-3492.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF LANCASTER : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 12-CA-128
SWEETMAN RENTAL, LLC ET AL. :
Defendants-Appellees :
And :
ROGER WERTZ :
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court
of Common Pleas, Case No. 2011 CV
01223
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 7, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
SUZANA KRASNICKI ROGER WERTZ, pro se
KEITH D. WEINER & ASSOC. CO. 9909 Birchwood St.
75 Public Square, 4th Floor Pickerington, OH 43147
Cleveland, OH 44113
Fairfield County, Case No.12-CA-128 2
Delaney, J.
{¶1} Appellant Roger Wertz appeals from the October 16, 2012 Order of the
Fairfield County Court of Common Pleas granting appellee City of Lancaster’s Motion
for Summary Judgment.1
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant Wertz is the president and chief operating officer of appellee
Sweetman Rental, LLC (“Sweetman”). On December 5, 2011, appellee City of
Lancaster (“Lancaster”) filed a complaint in the trial court against appellant and
Sweetman, alleging they failed to pay certain municipal net profit and withholding taxes
as follows:
[I]n Count I, against [Sweetman] for net profit taxes for the tax years
of 2004 and 2005, in the principal amount of $1,569.73, plus
penalties and prejudgment interest in the amount of $601.20, plus
30% statutory collection costs in the about of $651.28, for a total of
$2,822.21, plus additional interest on the principal balance only at
the statutory rate of 12% per annum from August 11, 2011; and in
Count II against [Sweetman and appellant] for withholding taxes for
the tax years of 2004 through 2010, in the principal amount of
$32,322.83, plus penalties and prejudgment interest in the amount
of $7,434.59, plus 30% statutory collection costs in the amount of
$11,627.23, for a total of $51,684.65, plus additional interest on the
principal balance only at the statutory rate of 36% per annum from
1
Appellee Sweetman Rental, LLC is not a party to this appeal.
Fairfield County, Case No.12-CA-128 3
August 11, 2011 and costs, less credit for payments received post
chargeoff.
{¶3} On March 13, 2012, the trial court entered default judgment against
Sweetman. Sweetman and appellant remitted payments slightly in excess of $5,000 on
their total obligation; as of June 21, 2012, appellee has credited Sweetman and
appellant in the amount of $3,370.31; $2097.03 was applied to Sweetman’s net profit
tax obligations, and $1,273.28 was applied to the joint withholding tax obligations.
{¶4} On June 28, 2012, appellee filed a motion for summary judgment against
appellant; appellant responded and appellee replied. The trial court sustained
appellant’s motion for summary judgment on October 16, 2012 and granted judgment,
jointly and severally, in Count II only, in the principal amount of $32,322.83, plus
penalties and prejudgment interest in the amount of $7,434.59, plus 30% statutory
collection costs in the amount of $11,627.23 for a total of $51,684.65, plus additional
interest on the principal balance only at the statutory rate of 36% per annum from
August 11, 2011 and costs; less credit for payments received and applied to Count II’s
withholding taxes only, in the amount of $1,273.28.
{¶5} Appellant appeals from the judgment of the trial court granting appellee’s
motion for summary judgment.
{¶6} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶7} “I. TRIAL COURT ERRED IN GRANTING THE MOTION FOR
SUMMARY JUDGMENT BECAUSE IT FAILED TO CONSIDER GENUINE ISSUES OF
MATERIAL FACT RELATED TO THE MATTER BEFORE IT.”
Fairfield County, Case No.12-CA-128 4
ANALYSIS
I.
{¶8} Appellant argues the trial court erred in granting appellee’s motion for
summary judgment because it should have taken into account issues of material fact in
a “parallel and related legal action.” We disagree.
{¶9} Summary judgment motions are to be resolved in light of the dictates of
Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman
v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (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 viewing such evidence most
strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary
judgment is made. State ex rel. Parsons v. Fleming, 68 Ohio
St.3d 509, 511, 628 N.E.2d 1377 (1994), citing Temple v.
Wean United, Inc. 50 Ohio St.2d 317, 327, 364 N.E.2d 267(1977).
{¶10} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgment motions on the same
Fairfield County, Case No.12-CA-128 5
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35, 36, 56 N.E.2d 212 (1987).
{¶11} Appellant asks us to consider facts arising from a different Fairfield County
case and appended exhibits to his brief related thereto. There is no indication,
however, that those exhibits were submitted to the trial court in the instant case in
response to appellee’s motion for summary judgment, and we may not consider them
on appeal. App.R. 9(A) defines the record on appeal as “[t]he original papers and
exhibits thereto filed in the trial court, the transcript of proceedings, if any, including
exhibits, and a certified copy of the docket and journal entries prepared by the clerk of
the trial court * * *.” Appellant's argument is based entirely upon matters not contained
in the trial court record and may not be considered. State v. Olmstead, 5th Dist.
Richland No. 2007-CA-119, 2008-Ohio-5884, ¶ 20; Swinderman v. Weaver, 5th Dist.
Tuscarawas No. 2001 AP 04 0030, 2002-Ohio-89.
{¶12} Beyond the procedural irregularity, we also affirm this matter on
substantive grounds. Appellant asks us to prevent appellee from collecting the tax
liability from appellant personally until a determination has been made as to the
sufficiency of the corporate assets but cites no legal basis for doing so. Instead,
appellee directs us to City of Lancaster Code Section 181.07(b), which states as
follows:
Such employer in collecting said tax shall be deemed to hold the
same, until payment is made by such employer to the City of
Lancaster, Ohio as a Trustee for the benefit of the City of
Lancaster, Ohio and any such tax collection by such employer from
Fairfield County, Case No.12-CA-128 6
his employees shall, until the same is paid to the City of Lancaster,
Ohio be deemed a trust fund in the hand of such employer. Every
employer or officer of a corporation is deemed to be a Trustee for
the City of Lancaster in collecting and holding the tax required
under this ordinance to be withheld. The officer or employee have
control or supervision of, or charged with the responsibility of, filing
the report and making payment is personally liable for failure to file
the report or pay the tax due as required by this section. The
dissolution of a corporation or other cessation of a business does
not discharge an officer’s or employee’s liability for prior failure of
the corporation to file returns or pay tax due.
{¶13} The cited ordinance essentially mirrors R.C. 5747.13 and Ohio Adm.Code
5703-7-15. Appellant has failed to raise any issue of material fact and appellee has
thus successfully established it is entitled to judgment as a matter of law.
{¶14} We find no basis upon which to reverse the trial court’s decision to grant
summary judgment for appellee City of Lancaster.
Fairfield County, Case No.12-CA-128 7
CONCLUSION
{¶15} Appellant’s sole assignment of error is overruled and the judgment of the
Fairfield County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. CRAIG R. BALDWIN