Johnson v. Clark Cty. Aud.

[Cite as Johnson v. Clark Cty. Aud., 2020-Ohio-3201.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
:
WILLIAM S. JOHNSON :
: Appellate Case No. 2019-CA-63
Plaintiff-Appellant :
: Trial Court Case No. 2018-CV-89
v. :
: (Civil Appeal from
CLARK COUNTY AUDITOR, et al. : Common Pleas Court)
:
Defendants-Appellees :
...........
OPINION
Rendered on the 5th day of June, 2020.
...........
WILLIAM S. JOHNSON, P.O. Box 62, Clifton, Ohio 45316
Plaintiff-Appellant, Pro Se
ANDREW P. PICKERING, Atty. Reg. No. 0068770, BEAU P. THOMPSON, Atty. Reg.
No. 0093688, and WILLIAM D. HOFFMAN, Atty. Reg. No. 0047109, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, OH 45502
Attorneys for Defendants-Appellees
.............
FROELICH, J.
-2-
{¶ 1} William S. Johnson appeals from the trial court’s grant of summary judgment
to the Clark County Defendants 1 on Johnson’s challenges to the ditch maintenance
assessments for 2016 and 2017 for the Goose Creek Ditch. For the following reasons,
the trial court’s judgment will be affirmed in part and reversed in part, and the matter will
be remanded for further proceedings.
I. Procedural History
{¶ 2} Johnson owns a 155-acre farm on Old Clifton Road in Springfield, Ohio. His
property benefits from the Goose Creek Ditch, which was built at a cost of $14,304.73 in
1959-1960. That cost became the “construction base” for purposes of levying
assessments for maintenance on properties benefitted by the ditch.
{¶ 3} In 2016, Clark County assessed a special assessment on Johnson’s real
estate tax bill of $2,022.25 for ditch maintenance, identified on his tax bill as “IFA1 Goose
Creek Ditch Maintenance.” This bill was payable in 2017. Johnson refused to pay the
2016 assessment, and the Clark County Treasurer applied a $101.11 penalty for
nonpayment. Johnson paid that assessment and penalty, under protest, on July 13,
2017. Johnson’s 2017 real estate tax bill, payable in 2018, included a ditch maintenance
assessment of $644.35.2
1 Johnson brought suit against Mark Niccolini, Clark County Drainage Supervisor;
Johnathan A. Burr, Clark County Engineer; John S. Federer, Clark County Auditor;
Stephen T. Metzger, Clark County Treasurer; and Clark County Commissioners Melanie
Flax Will, Lowell McGlothin, and Richard Lohnes, collectively the “Clark County
Defendants.” In July 2019, counsel for Niccolini notified the trial court that Niccolini no
longer held the position of Drainage Supervisor and that the duties had been assumed
by Burr, the Clark County Engineer.
2 Johnson’s complaint discusses communications that he had with the Clark County
Defendants regarding prior Goose Creek Ditch assessments, beginning in the spring of
2014. He indicates that he brought suit for the recovery of “illegal drainage assessments”
-3-
{¶ 4} On February 9, 2018, Johnson brought suit against the Clark County
Defendants, alleging that the assessments were “illegal, improper, excessive, and
unreasonable” in five respects. First, he claimed that the Goose Creek Ditch
Maintenance Fund maintained an unencumbered balance above 20 percent of the
construction costs, contrary to R.C. 6137.03. Second, he alleged that the Board of Clark
County Commissioners had failed to review and update the original assessment base
every six years, as required by R.C. 6137.11. Third, he alleged that he was “dramatically
over assessed for his drainage into Goose Creek.” Johnson stated that platted housing
benefits more from the ditch than his farm. Fourth, Johnson asserted that the County
Engineer had “failed to use the best and most economical method to maintain and repair
the ditch as required by ORC 6137.05, since he has not requested bids or contracts for
the work.” Johnson also alleged that the mowing expenses were excessive, and that the
County Engineer should not have charged equipment purchases immediately and fully
against the ditch maintenance fund. Finally, Johnson alleged that the Board of Clark
County Commissioners “improperly approved the 204 percent of the construction base
assessment for the benefited landowners payable in 2017.”
{¶ 5} Johnson attached several exhibits to his complaint: (1) County Ditch Report
from the County Engineer’s Office, dated April 30, 2015, (2) County Ditch Report from the
County Engineer’s Office, dated May 25, 2016, (3) County Ditch Report from the County
Engineer’s Office, dated May 25, 2017, (4) a copy of correspondence from Johnson to
the Clark County Treasurer and Auditor, protesting his 2016 ditch maintenance
on July 2, 2015 to recover assessments made in 2013 and 2014, payable in 2014 and
2015. See Johnson v. Niccolini, Clark C.P. No. 2015 CV 0451. Johnson filed a motion
to amend his complaint to include the 2015 assessment. That action is still pending.
-4-
assessment, and (5) a copy of correspondence from Johnson to the Clark County
Treasurer and Auditor, indicating that the payment of his 2016 assessment was being
made involuntarily. Johnson verified his complaint with an affidavit affirming that the
“claims and facts” therein were true and that the attachments to his complaint were “true
copies.”
{¶ 6} The Clark County Defendants jointly moved for summary judgment on
Johnson’s claims, arguing that the year-end balance of the Goose Creek Ditch
Maintenance Fund was always less than 20 percent of the construction base, that
Johnson had no private right of action with respect to the six-year review or any
increase/decrease in his assessment, that the six-year review requirement was directory,
that any decision to increase or decrease assessments was discretionary, that a six-year
review was in fact performed in 2016, that the assessments were not illegal, that Johnson
did not protest the payment of the 2017 assessment, and that Johnson’s fifth claim fails
to state a claim. The Clark County Defendants supported their motion with affidavits
from Clark County Engineer Johnathan Burr and Clerk to the Board of Clark County
Commissioners Megan Burr, and several documents, including the County Ditch Report
from the Engineer’s Office dated April 3, 2019, and documents presented at Board
meetings.
{¶ 7} Johnson opposed the motion and objected to the Clark County Defendants’
exhibits and the affidavit of Johnathan Burr. Johnson asserted that genuine issues of
material fact existed as to each of his claims and that he protested the payment of all
subsequent assessments in his 2015 lawsuit. Johnson also sought a 90-day
continuance so that he could conduct additional discovery on Johnathan Burr’s evidence
-5-
regarding the fund balance between 2011 and 2018.
{¶ 8} On July 26, 2019, the trial court granted the Clark County Defendants’ motion
for summary judgment. The trial court ruled:
First, the Court agrees with defendants, based on the Rule 56
evidence, the unencumbered balance of the Ditch maintenance fund was
never greater than 20% of the construction base. Specifically, defendants
point to the affidavit of Johnathan Burr, the Clark County Engineer, to show
that for all relevant years, the end of year balance was always less than
20% of the construction base ($2,860.95). Id. at ¶¶10-12 & Ex. B. In
addition, per the Engineer’s affidavit, “estimates made by Mark Niccolini
previously (including Attachments 1, 2, and 3 to the Complaint) were
erroneous.” Id. at ¶12.
Second (and third), the Court agrees R.C. 6137.11’s six year
directive is not mandatory since there are no penalties prescribed by statute
for the board’s failure to re-evaluate assessments every six years. In
addition, the statute does not give property owners the ability to compel the
six year review or to demand increases or decreases in assessments.
Therefore, assessments made in the absence of a periodic review are not
illegal. Instead, the statute provides property owners the opportunity to
demand a hearing if the board of county commissioners elect to increase
the property owner’s proportionate share of the assessments, and to appeal
the outcome of said hearing to the court of common pleas. Finally, as
defendants argue, and the County Engineer attests, the Board performed
-6-
the six year review in 2016. (Engineer Aff. At ¶9; Affidavit of Clerk Megan
Burr at ¶3, Exs. A-I & A-3). As to prior years, the statute does not allow for
retroactive assessments, and, therefore, no such remedy is available.
Fourth, R.C. 6137.05(A) allows the Engineer to use his own
employees and equipment rather than to proceed by bidding the
maintenance out to third parties. In addition, defendants point out that only
illegal assessments are actionable and, here, the plaintiff complains that the
maintenance costs are excessive on their face, but not that they are “illegal.”
Finally, as to plaintiff’s fifth allegation, defendants argue, and the court
agrees, no known cause of action exists to provide a legal remedy, and, in
any event, plaintiff has not identified any harm or damage separate and
apart from the improper assessment claims.
(Emphasis sic.) The trial court did not expressly address Johnson’s motion for a
continuance or his objections to the Clark County Defendants’ exhibits, but it implicitly
overruled the motion and the objections by ruling on the motion for summary judgment
and relying upon the disputed exhibits.
{¶ 9} Johnson appeals from the trial court’s judgment, raising nine assignments of
error. We will address Johnson’s arguments in a manner that facilitates our analysis.
II. Timeliness of the Clark County Defendants’ Motion
{¶ 10} In his ninth assignment of error, Johnson claims that the trial court “erred
when [it] allowed the Defendants to file the Motion for Summary Judgment without the
leave of the Court as required by Civil Rule 56(B).”
{¶ 11} Civ. R. 56(B) provides:
-7-
A party against whom a claim, counterclaim, or crossclaim is asserted or a
declaratory judgment is sought may, at any time, move with or without
supporting affidavits for a summary judgment in the party’s favor as to all or
any part of the claim, counterclaim, cross-claim, or declaratory judgment
action. If the action has been set for pretrial or trial, a motion for summary
judgment may be made only with leave of court.
Civ.R. 56(A) similarly permits a party seeking affirmative relief to move for summary
judgment, after the action has been set for pretrial or trial, only with leave of court.
{¶ 12} A magistrate held a pretrial conference on March 12, 2019, and filed a final
pretrial order the following day. The order scheduled a pretrial/settlement conference for
June 27, 2019, and a bench trial for July 30, 2019. The order indicated that dispositive
motions were to be filed by six weeks prior to trial, and discovery was to be completed
one month prior to trial. The magistrate’s order gave leave to both parties to file
dispositive motions, including motions for summary judgment, through the established
deadline. Neither Johnson nor the Clark County Defendants objected to the magistrate’s
order.
{¶ 13} Under the final pretrial order, the deadline for dispositive motions was
Tuesday, June 18, 2019. The Clark County Defendants filed their joint motion for
summary judgment on that date. Accordingly, their motion was timely.
{¶ 14} Johnson’s ninth assignment of error is overruled.
III. Additional Discovery
{¶ 15} In his third assignment of error, Johnson claims that the trial court erred
when it ruled on the Clark County Defendants’ summary judgment motion without allowing
-8-
him additional discovery time in response to statements in Johnathan Burr’s affidavit
related to the Goose Creek Ditch Maintenance Fund balances between 2011 and 2017.
{¶ 16} The Clark County Defendants’ motion for summary judgment included an
affidavit from Johnathan Burr, the Clark County Engineer. Paragraph 12 of his affidavit
stated:
After I assumed the duties of ditch supervisor in July 2018, I directed my
staff to review the deposits (of assessments collected) and expenses for
ditch maintenance funds in Clark County, including Goose Creek Ditch,
dating back to 2011. Exhibit B-1 is what was produced by the Clark County
Engineer’s Office as a result of this review, as specifically pertains to the
Goose Creek Ditch maintenance fund. Exhibit B-1 is a true and accurate
copy of that document. Exhibit B-1 demonstrates that at the end of each
calendar year 2011 through 2018, the balance in the Goose Creek Ditch
maintenance fund was less than 20% of the construction base. Exhibit B-
1 also demonstrates that the estimates made by Mark Niccolini previously
(including Attachments 1, 2, and 3 to the Complaint) were erroneous.
{¶ 17} On June 27, 2019, the parties met with a magistrate for a pretrial
conference. Although the record does not contain a transcript of this conference, the
parties agree that Johnson moved for additional time to conduct discovery, claiming that
he was surprised by the information in paragraph 12 and Exhibit B-1 of Burr’s affidavit.
Johnson represents in his appellate brief that the magistrate indicated that she would
consider such a motion after “answers” to the summary judgment motion were filed.
{¶ 18} On July 11, Johnson filed his opposition memorandum to the Clark County
-9-
Defendants’ summary judgment motion. On the same date, he moved for a 90-day
continuance, stating that Exhibit B-1 indicated that the County Engineer had transferred
$13,000 from the Goose Greene Ditch Maintenance Fund without explanation and that
he (Johnson) needed additional time for “depositions, interrogatories, and requests for
production of documents on the matter of the missing $13,000.” Johnson described
Johnathan Burr’s information as a “material issue and fact in this case which the
Defendants should have supplemented their answers to this complaint with this
information when it became known after July 2018.”
{¶ 19} Civ.R. 56(F) provides:
Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party’s opposition, the court
may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or discovery to be had or may make such
other order as is just.
{¶ 20} We discussed this Rule in Doriott v. MVHE, Inc., 2d Dist. Montgomery No.
20040, 2004-Ohio-867, stating:
Pursuant to Civ.R. 7(A), the grounds for a Civ.R. 56(F) motion for a
continuance must be stated with particularity. In addition, Civ.R. 56(F)
requires the motion to be supported by an affidavit containing “sufficient
reasons why (the nonmoving party) cannot present by affidavit facts
sufficient to justify its opposition” to the summary judgment motion. Id.“Mere allegations requesting a continuance or deferral of action for the
-10-
purpose of discovery are not sufficient reasons why a party cannot present
affidavits in opposition to the motion for summary judgment.” “There must
be a factual basis stated and reasons given within an affidavit why a party
cannot present facts essential to its opposition to the motion.”
A party who seeks a continuance for further discovery is not required
to specify what facts he hopes to discover, especially where the facts are in
the control of the party moving for summary judgment. However, the court
must be convinced that there is a likelihood of discovering some such facts.
Further, a claim that the party has not completed discovery is more likely to
be rejected by the court where the party has not shown some diligence in
attempting discovery.
(Citations omitted.) Id. at ¶ 40-41; Gregory v. Towne Properties, Inc., 2d Dist. Montgomery
No. 26410, 2015-Ohio-443, ¶ 15, quoting Doriott.
{¶ 21} “The trial court’s determination of a Civ.R. 56(F) motion is a matter within
its sound discretion. * * * Accordingly, the trial court’s determination will not be reversed
absent an abuse of that discretion.” (Citation omitted.) Scaccia v. Dayton Newspapers,
Inc., 170 Ohio App.3d 471, 2007-Ohio-869, 867 N.E.2d 874, ¶ 13 (2d Dist.). An abuse
of discretion “implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶ 22} We cannot conclude that the trial court abused its discretion in denying
Johnson’s motion for a continuance. Johnson did not support his motion with an
affidavit, as required by Civ.R. 56(F), nor did he articulate, other than in general terms,
-11-
what additional discovery he would need in order to oppose the Clark County Defendants’
summary judgment motion.3
{¶ 23} Johnson’s third assignment of error is overruled.
IV. Civ.R. 56 Evidence
{¶ 24} Johnson’s first assignment of error claims that the trial court erred in
considering the affidavit of Johnathan Burr and Exhibits A-2, A-3, A-5, and B-1 over his
(Johnson’s) objections.
{¶ 25} Civ.R. 56 addresses the evidence properly considered in a motion for
summary judgment. With respect to affidavits and attachments, it provides in relevant
part:
Supporting and opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated in
the affidavit. Sworn or certified copies of all papers or parts of papers
referred to in an affidavit shall be attached to or served with the affidavit.
The court may permit affidavits to be supplemented or opposed by
depositions or by further affidavits. * * *
Civ.R. 56(E).
{¶ 26} Megan Burr, Clerk to the Board of Clark County Commissioners, provided
an affidavit stating that she was responsible for preparing agendas for meetings of the
3 The Clark County Defendants further argue that Johnson did not conduct any discovery
between the filing of his complaint in February 2018 and the filing of their motion for
summary judgment in June 2019. The record does not contain any information about
whether Johnson did or did not engage in discovery.
-12-
Board and keeping accurate minutes of Board meetings; she also was designed as the
deputy records custodian for the Board. Burr indicated that she had personal knowledge
of the facts in her affidavit, and she authenticated the exhibits attached to her affidavit,
including Exhibits A-2, A-3, and A-5.
{¶ 27} According to Megan Burr’s affidavit, Exhibit A-2 was “a true and accurate
copy of the Clark County Engineer’s ditch report made to the Board, and approved by the
Board in Resolution 2016-0356.” Exhibit A-3 was a “true and accurate copy of the
recommendations of the Clark County Engineer regarding changes to the assessment
base of Clark County ditches, as well as the six year review required by Section 6137.11
of the Ohio Revised Code.” Exhibit A-5 was “a true and accurate copy of the Goose
Creek ditch report that was received and acknowledged in Exhibit A-4.” Exhibit A-4,
which Johnson does not challenge, was “a true and accurate copy of Resolution 2017-
0462 of the Board, which acknowledged the Clark County Engineer’s 2017 ditch reports
and approved assessment for 2018.”
{¶ 28} Johnson argues that Exhibit A-2 should not have been considered, because
its source was not mentioned in the motion for summary judgment, it was not mentioned
in the Board’s June 8, 2016 minutes, and it was inconsistent with the information in
Johnson’s Exhibit 4-2. Johnson similarly argues that Exhibit A-3 should not have been
considered because it was not mentioned at the June 8, 2016 Board meeting and the
minutes do not reflect a six-year review.
{¶ 29} We find nothing improper or inadmissible about Megan Burr’s affidavit and
its attachments. Megan Burr indicated that the statements in her affidavit were based
on personal knowledge, and she indicated the basis for such knowledge. She identified
-13-
the documents attached to her affidavit as true and accurate copies. Johnson’s
arguments are directed to whether Megan Burr’s affidavit and the attachments are
probative, i.e., whether they prove or demonstrate something relevant to the issues
raised. However, whether this evidence was probative of any issue raised in the action
had no bearing on whether the evidence was admissible for purposes of the Clark County
Defendants’ summary judgment motion.
{¶ 30} Johnson challenges the trial court’s consideration of Exhibit A-5, arguing
that it should not have been admitted without cross-examination because it differed
significantly from other documents given to him (Johnson). The fact that one or more
exhibits of the Clark County Defendants may have contradicted one or more of Johnson’s
exhibits went to whether a genuine issue of material facts existed, not whether the Clark
County Defendants’ exhibits were admissible.
{¶ 31} Finally, Johnson claims that Johnathan Burr’s affidavit and the attached
Exhibit B-1 should not have been considered without cross-examination, because
statements in Burr’s affidavit contradicted statements in Burr’s answer.
{¶ 32} Johnson’s complaint alleged that the County Engineer’s Ditch Reports for
2014-2017 contained numerous errors and did not support the recommendation for
assessments. Johnson did not attach the 2014 ditch report to his complaint, but he
attached County Ditch Reports dated April 30, 2015 (Attachment 1), May 25, 2016
(Attachment 2), and May 25, 2017 (Attachment 3).
{¶ 33} In response to these allegations, County Engineer Johnathan Burr’s answer
stated that each County Ditch Report “speaks for itself.” He further denied that the
documents “ ‘show’ any fund balance, encumbered or unencumbered, as the balance of
-14-
any fund is recorded and maintained by the Clark County Auditor, not the Clark County
Engineer.” (See Burr’s Answer, ¶ 27-28 as to the 2014 report; ¶ 4, ¶ 42-43 as to the
2015 report; ¶ 42-43 as to the 2016 report; and ¶ 48-49 as to the 2017 report.)4
{¶ 34} In support of the Clark County Defendants’ motion for summary judgment,
Johnathan Burr stated in his affidavit that he had his staff prepare a report of ditch
maintenance fund balances between 2011 and 2018. (See Johnathan Burr affidavit,
¶ 12.) The County Ditch Report for the Goose Creek Ditch, dated April 3, 2019, was
attached to his affidavit as Exhibit B-1 and purported to show that the Goose Creek Ditch
balances were within the statutory criteria. Burr further stated that this report indicated
that the estimates made by Mark Niccolini, as reflected in Johnson’s Attachments 1-3,
were erroneous.
{¶ 35} In light of Burr’s statements in his answer that the Engineer’s Office’s
reports of maintenance fund balances (as opposed to reports from the Auditor’s Office)
should not be considered as evidence of the actual fund balances, we agree with Johnson
that the Clark County Defendants cannot themselves rely upon an updated version of the
Engineer’s Office report of the Goose Creek Ditch Maintenance Fund balances. As
stated by the Eleventh District, “It is axiomatic that the responses in [a party’s] answer
constitute admissions which he [or she] cannot later contradict or challenge via deposition
or other testimony * * *.” Stanwade Metal Prods. v. Heintzelman, 158 Ohio App.3d 228,
2004-Ohio-4196, 814 N.E.2d 572, ¶ 21 (11th Dist.).
{¶ 36} Although not directly on point, we find Turner v. Turner, 67 Ohio St.3d 337,
4 The answer of the Board of Clark County Commissioners includes the same language,
as does the answer of the Clark County Treasurer and Clark County Auditor.
-15-
617 N.E.2d 1123 (1993) to be instructive. In that case, the supreme court held that a
moving party’s contradictory affidavit may not be used to obtain summary judgment. It
stated, “When a litigant’s affidavit in support of his or her motion for summary judgment
is inconsistent with his or her earlier deposition testimony, summary judgment in that
party’s favor is improper because there exists a question of credibility which can be
resolved only by the trier of fact.” Id. at 341-342 and paragraph one of the syllabus.
{¶ 37} In ruling on the Clark County Defendants’ summary judgment motion, the
trial court did not mention the exhibits attached to Johnson’s opposition memorandum,
and it is unclear whether the trial court considered them. Johnson does not raise in his
assignment of error that the trial court erred in failing to consider those exhibits, but the
Clark County Defendants argue in their appellate brief that the trial court did not err in
disregarding the exhibits attached to Johnson’s opposition memorandum.
{¶ 38} The exhibits attached to Johnson’s opposition memorandum were
correspondence from the Auditor’s Office to Johnson (Exhibit 4-1) and a report showing
income and expenses for the Goose Creek Ditch for 2016-2019 (Exhibit 4-2). The year-
end balances for 2017 and 2018 in Exhibit 4-2 were $20,568.57 and $6,218.37,
respectively. Johnson did not provide an affidavit authenticating these exhibits.
Accordingly, even assuming that the trial court did not consider the exhibits when ruling
on the Clark County Defendants’ summary judgment motion, the trial court did not err in
disregarding them.5
5 In the absence of an objection, a trial court has the discretion to consider improperly
introduced materials and to disregard defects in the Civ.R. 56 materials. Williams v.
Pioneer Credit Recovery, Inc., 2d Dist. Montgomery No. 28524, 2020-Ohio-397, ¶ 10, fn.
3, citing White v. Smedley’s Chevrolet, 2d Dist. Montgomery No. 26637, 2016-Ohio-968,
¶ 31, fn. 1 (failure to move to strike or otherwise object to plaintiff’s evidence waived any
-16-
{¶ 39} By contrast, we note that Johnson’s complaint was verified by an affidavit,
and the affidavit further indicated that the exhibits attached to the complaint were true and
accurate copies of those items. Accordingly, the attachments to Johnson’s complaint
and the facts alleged in the complaint, which Johnson referenced in his memorandum in
opposition to summary judgment, were properly before the trial court for consideration of
the Clark County Defendants’ summary judgment motion.
{¶ 40} Johnson’s first assignment of error is overruled in part and sustained in part.
V. Review of Summary Judgment Decision
{¶ 41} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).
{¶ 42} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
error in the trial court’s consideration of plaintiff’s evidence in ruling on a summary
judgment motion); Kuczirka v. Ellis, 9th Dist. Summit No. 29061, 2018-Ohio-5318, ¶ 5, fn.
1. In this case, however, the Clark County Defendants’ reply memorandum included
objections to the two unauthenticated documents attached to Johnson’s opposition
memorandum.
-17-
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Dresher at 293. Throughout, the evidence
must be construed in favor of the nonmoving party. Id.{¶ 43} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.
De novo review means that this court uses the same standard that the trial court should
have used, and we examine all the Civ.R. 56 evidence, without deference to the trial court,
to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond,
2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
A. Maximum Fund Balance
{¶ 44} Johnson’s second assignment of error claims that the trial court erred in
concluding that the unencumbered balance of the Goose Creek Ditch Maintenance Fund
was never greater than 20 percent of the construction base.
{¶ 45} R.C. 6137.03 provides that ditches are maintained by assessments on the
benefited property owners. The statute also sets a maximum unencumbered balance
for ditch maintenance funds. It states, in relevant part:
The maintenance fund shall be maintained, as needed, by an assessment
levied not more often than once annually upon the benefited owners, as
defined in section 6131.01 of the Revised Code, apportioned on the basis
of the estimated benefits for construction of the improvement. An
assessment shall represent such a percentage of the estimated benefits as
is estimated by the engineer and found adequate by the board or joint board
-18-
to effect the purpose of section 6137.02 of the Revised Code, except that
at no time shall a maintenance fund have an unencumbered balance
greater than twenty per cent of all construction costs of the improvement.
The minimum assessment shall be two dollars.
(Emphasis added.) In this case, the construction cost of the Goose Creek Ditch was
$14,304.73, resulting in a 20 percent unencumbered balance limit of $ 2,860.95.
{¶ 46} In their motion for summary judgment, the Clark County Defendants relied
on the affidavit of the County Engineer, Johnathan Burr, and his accompanying Exhibit
B-1 to show that, for all relevant years, the end of year balance was always less than 20
percent of the construction base. We concluded, above, that the trial court should not
have considered paragraph 12 of Burr’s affidavit and Exhibit B-1 (the updated fund
balances by the County Engineer’s Office), because the Clark County Defendants said in
their answers that the Engineer’s Office’s ditch reports did not “show” fund balances,
encumbered or unencumbered, “as the balance of any fund is recorded and maintained
by the Clark County Auditor, not the Clark County Engineer.”6
{¶ 47} The Clark County Defendants have provided no additional evidence, such
as the County Auditor’s balances for the Goose Creek Ditch Maintenance Fund, to
demonstrate that the Goose Creek Ditch Maintenance Fund balance complied with R.C.
6137.03 during the relevant years.
{¶ 48} Even if we were to consider paragraph 12 of Johnathan Burr’s affidavit and
Exhibit B-1, we would conclude that genuine issues of material fact exist. Exhibit B-1,
6If these statements were overbroad or inaccurate, the Clark County Defendants could
have sought leave to amend their answers, pursuant to Civ.R. 15. No such motion has
been made.
-19-
dated April 3, 2019, showed balances for 2011 to 2018. For all years except 2017, the
year-end balance was a negative number; all positive balances shown on the report were
below $2,860.95. However, Johnson attached to his verified complaint County Ditch
Reports from 2015-2017 for the Goose Creek Ditch. The 2015 report indicated an
anticipated December 31, 2016 ditch fund balance of $4,470. The 2017 report indicated
an anticipated December 31, 2018 ditch fund balance of $6,311.90. Burr’s affidavit
stated that Exhibit B-1 demonstrated that the estimates made by former Drainage
Supervisor Mark Niccolini were erroneous, but Burr’s exhibit provided no details as to how
his figures were calculated. There was conflicting evidence before the trial court, and
construing the evidence in the light most favorable to Johnson, genuine issues of material
fact existed as to the maintenance fund balances for the Goose Creek Ditch.
Accordingly, the trial court erred in granting summary judgment to the Clark County
Defendants on this claim.
B. Six-Year Review
{¶ 49} Johnson’s second claim alleged that the permanent assessment base for
the Goose Creek Ditch had not been reviewed and updated every six years, contrary to
R.C. 6137.11. His third claim alleged that he had been over-assessed and required to
pay more than his proportionate share of the benefit of the ditch maintenance.
{¶ 50} R.C. 6137.11 provides that “[t]he original schedule of benefit assessments
upon owners for the construction of any improvement shall be maintained by the county
auditor as the permanent base for maintenance assessments.” In other words,
landowners are charged maintenance assessments in the same percentage as they were
assessed for the original construction cost of the ditch, which was based on the benefit
-20-
derived by the landowner from the ditch.
{¶ 51} R.C. 6137.11 further provides:
The maintenance assessments shall be levied by the county auditor
in such percentage of the permanent base as is authorized by the board of
county commissioners.
The board of county commissioners, before certifying the percentage
of the permanent base to be levied in any one year for the drainage
maintenance fund, shall consider any recommendation by the county
engineer and any application by any owner for increase or reduction of the
permanent assessment base as it applies to any owner.
Any such increase or reduction of the permanent assessment base
with respect to any owner shall be made for the purpose of correcting any
inequity that has arisen due to increase or decrease in the proportionate
share of benefits accruing to the owner as the result of the construction and
maintenance of the improvement.
After six annual maintenance fund assessments have been made
upon the owners benefiting from an improvement, the board of county
commissioners shall review the permanent base for maintenance fund
assessment and may increase or decrease the respective benefit
apportionments in accordance with changes in benefits that have occurred
during the intervening six years.
***
At the expiration of six years from the date of the first review of the
-21-
permanent base of maintenance assessments, and at six-year intervals
thereafter, the board of county commissioners shall again review the
permanent base and set a hearing on any proposed changes by the
procedure provided in this section for the first such review.
***
The hearing on the changes in, or additions to, the permanent base
for maintenance assessment may be adjourned from time to time by the
board of county commissioners and, upon conclusion of the hearing, the
revised permanent base shall be certified to the county auditor and shall
become the permanent base for maintenance assessments, except as
changed from time to time with respect to individual owners.
(Emphasis added.)
{¶ 52} The six-year review permits a board of county commissioners to increase
or decrease the benefit apportionments of each landowner in accordance with changes
in benefits that have occurred during the six-year period. R.C. 6137.11. At the same
time, the board of county commissioners may ask the county engineer to estimate the
construction cost of the ditch if the ditch were constructed at the time of the review. R.C.
6137.112. If the board of county commissioners approves that estimate by resolution,
the engineer’s estimate would replace the original construction cost as the base for
calculating the assessments. Id.{¶ 53} Johnson’s sixth assignment of error claims the trial court erred in ruling that
the Board of Clark County Commissioners performed a six-year review in 2016. The
documents attached to Megan Burr’s affidavit support the conclusion that such a review
-22-
occurred. The minutes of June 6, 2016 meeting of the Board of Clark County
Commissioners (Exhibit A-1) reflect a discussion about an increase of the base amount
for the Goose Creek Ditch (see R.C. 6137.112). Resolution 2016-0356 acknowledged
the Engineer’s Office’s 2016 Ditch Reports and approved the recommendation for 2017
assessments (Exhibit A-2).
{¶ 54} Exhibit A-3, entitled “Permanent Assessment Base Revision; Six Year
Review,” was identified by Megan Burr as a copy of the recommendations of the Clark
County Engineer regarding changes to the assessment base of county ditches, as well
as the six year review required by R.C. 6137.11. The document showed the
recommended permanent base adjustment from $14,304.73 to $179,096.00.
{¶ 55} The Clark County Defendants’ exhibits do not necessarily reflect a review
of the permanent base for maintenance fund assessment as it relates to individual
owners. However, R.C. 6137.11 states that the board of county commissioners “may
increase or decrease the respective benefit apportionments in accordance with changes
in benefits that have occurred during the intervening six years.” (Emphasis added.)
Johnson was not entitled to a modification of his benefit apportionment as part of the six-
year review. Moreover, R.C. 6137.11 allows any owner to apply for an “increase or
reduction of the permanent assessment base as it applies to any owner.” Johnson has
provided no evidence that he has pursued this avenue.
{¶ 56} Finally, Johnathan Burr’s affidavit addressed Johnson’s claim that the
change in certain property from farmland to platted housing has made Johnson’s
assessment no longer equitable. Burr stated that he has 30 years of experience
designing and reviewing drainage systems and runoff calculations. He continued:
-23-
6. Based on my education and experience, when farmland is converted to
low density housing (as in 1/2 acre to 1 acre lots), the water runoff rate is
essentially the same as (and sometimes lower than) farmland because the
impervious areas of the houses and driveways are offset by the grass
lawns. Farmland even with no till practices still have a high rate of runoff
compared to a grass lawn. This is why on low density housing there is
typically not detention or retention basins to mitigate runoff.
7. Based on my education and experience, assuming that Plaintiff is using
the practices he claims in the Complaint (as stated in paragraph 5 above),
these are all good practices for soil conservation, the goal of which is to
reduce silt from being deposited into creeks and ditches – not to reduce
water runoff rates. No till farming greatly reduces the silt running into the
ditch but increases the crop residue that is deposited into the ditch. Crop
residue has created major issues for the ditches that I maintain as Clark
County Engineer, as the crop residue will plug drainage structures as well
as the ditches themselves in extreme circumstances.
8. Therefore, based on my education and experience, the reasons set
forth by the Plaintiff for why his assessments for the Goose Creek Ditch are
not equitable, are not correct.
Johnson provided no evidence to rebut the County Engineer’s evidence.
{¶ 57} Construing the evidence in the light most favorable to Johnson, the trial
court did not err in granting summary judgment to the Clark County Defendants on
Johnson’s second and third claims.
-24-
{¶ 58} Johnson’s fourth assignment of error claims that the trial court erred in
concluding that the six-year review was directory, not mandatory. In light of the Clark
County Defendants’ undisputed evidence that a six-year review occurred in 2016,
whether a six-year review is directory or mandatory is immaterial, and we overrule the
assignment of error as moot.
C. Excessive Maintenance Costs
{¶ 59} Johnson’s seventh assignment of error claims that the trial court erred in
concluding that Engineer’s Office’s maintenance costs for the Goose Creek Ditch were
not illegal.
{¶ 60} In their motion for summary judgment, the Clark County Defendants argued
that Johnson “cannot take issue with whether an assessment is ‘excessive,’ only whether
it is illegal.” The Clark County Defendants asserted that the County Engineer was
authorized to use his own employees and equipment (R.C. 6137.05(A)) and that
assessments were not illegal based on how the Engineer maintained the ditches.
{¶ 61} Johnson opposed the motion, arguing that genuine issues of material fact
existed as to the amount of the maintenance costs. He maintained in his complaint that
the amounts expended were excessive.
{¶ 62} A ditch maintenance fund is subject to use by a board of county
commissioners for “the necessary and proper repair or maintenance” of the ditch.7 See
R.C. 6137.05. The board or the county engineer must make an estimate of the cost of
7 R.C. 6137.051 addresses repairs based on a landowner’s written complaint that an
improvement (such as a ditch) is in need of repair. That statute is inapplicable to the
situation before us.
-25-
the necessary work and material required. The work may be done by force account8 or
by contract, whichever is “most economical[ ] and expeditious[ ].” R.C. 6137.05(A). The
repair and maintenance also may be done in part by contract and in part by force account,
“it being the duty of the board of county commissioners * * * and the county engineer to
use the best and most economical methods under local conditions for the various phases
of the maintenance program * * *.” R.C. 6137.05.
{¶ 63} The county auditor is responsible for creating and maintaining a rotary fund
for the purchase of equipment, materials, and labor related to general ditch maintenance.
R.C. 6137.06. This rotary fund is maintained by “a proportionate withdrawal for the funds
of each drainage improvement * * *.” Id. The county engineer is tasked with
establishing a rental rate for equipment purchased with the rotary fund. Id. The rental
rate is then used in charging the equipment, material, and labor to the drainage
improvement upon which it is used in order to reimburse the rotary fund. Id.{¶ 64} The Clark County Defendants argue that summary judgment in their favor
was proper, because Johnson failed to demonstrate that the maintenance expenses were
illegal. They state that there is no private right of action to object to the maintenance
costs, and that the County Engineer had the discretion to perform the maintenance with
his own personnel.
8 The phrase “force account” is not defined in R.C. Chapter 6137. However, R.C.
5543.19(C) defines “force account” projects as those in which “ * * * the county engineer
will act as contractor, using labor employed by the engineer using material and equipment
either owned by the county or leased or purchased by the county in compliance with
sections 307.86 to 307.92 of the Revised Code and excludes subcontracting any part of
such work unless done pursuant to sections 307.86 to 307.92 of the Revised Code.”
Stated simply, “force account” generally refers to work performed “in house.” State ex
rel. Renwand v. Huron Cty. Bd. of Commrs., 6th Dist. Huron No. H-09-011, 2010-Ohio-
1477, ¶ 3.
-26-
{¶ 65} We agree with the Clark County Defendants that they are entitled to
summary judgment on Johnson’s claim based on the Engineer’s failure to request bids or
contracts for the maintenance work. R.C. 6137.05 expressly permits the County
Engineer to perform maintenance “by force account” or by contract. The mere fact that
the County Engineer chose to use his own resources was not, as a matter of law, a
statutory violation.
{¶ 66} Johnson further alleged in his complaint that the mowing expenses (and
thus the assessments for these expenses) were both excessive and illegal, because
“[t]here appears to be an overcharging on man hours, equipment, and other expenses to
the Goose Creek Ditch” and equipment purchases were improperly applied to the ditch
maintenance account. In essence, Johnson claims that the Goose Creek Ditch
Maintenance Fund was improperly charged for certain maintenance costs, resulting in an
illegal assessment on benefitted owners. Johnson’s allegations fall within his claim
under R.C. 2723.03 for reimbursement of illegal assessments.
{¶ 67} The initial burden is on the moving parties (the Clark County Defendants)
to demonstrate that they maintained the ditches in accordance with R.C. Chapter 6137
and correctly applied the expenses to the Goose Creek Ditch Maintenance Fund.
However, the County Engineer’s affidavit does not mention maintenance costs, indicate
how the maintenance costs for the relevant years were determined and applied against
the Goose Creek Ditch Maintenance Fund, or even suggest that the County complied
with R.C. Chapter 6137 in this respect. The Clark County Defendants have presented
no evidence to shift the burden to Johnson and, in the absence of any evidence on their
behalf, the Clark County Defendants did not establish their entitlement to summary
-27-
judgment regarding the charging of maintenance expenses to the Goose Creek Ditch
Maintenance Fund.
{¶ 68} Johnson’s seventh assignment of error is sustained in part and overruled in
part.
D. Improper Approval of Assessments
{¶ 69} Johnson’s fifth and eighth assignments of error are directed to his fifth claim
for relief (“fifth complaint for money damages”), which alleged that the Board of
Commissioners “improperly approved the 204 percent of the construction base
assessment for the benefited landowners payable in 2017” and that the court “should
grant the Plaintiff compensatory damages for this lawsuit.” The fifth assignment of error
states that the trial court “erred when [it] ruled that, ‘no known cause of action exists to
provide a legal remedy’ for illegal assessments.” The eighth assignment of error claims
that the court erred in ruling that Johnson failed to identify any harm or damage from the
alleged illegal and improper assessments.
{¶ 70} As with the trial court, we find no basis for Johnson to seek compensatory
damages (a legal remedy) for the alleged improper assessments. The essence of
Johnson’s complaint is that he was over-assessed for maintenance of the Goose Creek
Ditch, and he seeks a refund of those overpayments. See R.C. Chapter 2723; Ryan v.
Tracy, 6 Ohio St.3d 363, 366, 453 N.E.2d 661 (1983) (“R.C. 2723.01 et seq. provide the
exclusive means by which a taxpayer may, with the approbation of the court, demand that
the county auditor refund erroneously collected taxes.”). A claim for the refund of
overpayment of taxes is not a claim for monetary damages, but a claim for equitable
restitution. See LaBorde v. Gahanna, 2015-Ohio-2047, 35 N.E.3d 55 (10th Dist.). The
-28-
trial court properly concluded that the Clark County Defendants were entitled to summary
judgment on his claim for compensatory damages.
{¶ 71} Johnson’s fifth and eighth assignments of error are overruled.
E. Voluntariness of Johnson’s 2018 payment
{¶ 72} Although not addressed in the trial court’s summary judgment decision, the
Clark County Defendants asserted in their summary judgment motion that Johnson was
not entitled to a refund of his 2017 assessment payment (paid in 2018), because he did
not allege that he had paid $644.35 in 2018 and did not allege that his payment of this
amount was involuntary because he made a formal protest of the assessment. (The
Clark County Defendants acknowledge that Johnson formally protested his payment of
the 2016 assessment, paid in 2017.)
{¶ 73} R.C. 2723.03 states in relevant part:
If a plaintiff in an action to recover taxes or assessments, or both, alleges
and proves that he * * *, at the time of paying such taxes or assessments,
filed a written protest as to the portion sought to be recovered, specifying
the nature of his claim as to the illegality thereof, together with notice of his
intention to sue under sections 2723.01 to 2723.05, inclusive, of the
Revised Code, such action shall not be dismissed on the ground that the
taxes or assessments, sought to be recovered, were voluntarily paid.
The provisions regarding written protest and notice of intention to sue are mandatory and
must be adhered to strictly. Ryan, 6 Ohio St.3d at 365, 453 N.E.2d 661. When a plaintiff
fails to comply with those requirements, the action is barred. Blisswood Village
Homeowners Assn. v. McCormack, 38 Ohio St.3d 73, 526 N.E.2d 69 (1988).
-29-
{¶ 74} Johnson’s verified complaint indicates that he paid $644.35 for the 2017
assessment. However, there is no indication that he filed a written protest at the time of
his payment or a notice of intention to sue regarding the payment. Johnson argues that
he filed an amended complaint in his 2015 lawsuit, which included a blanket protest to
any future assessments. However, the record of the 2015 lawsuit is not in the record
before us and is not readily accessible online. Moreover, we conclude that such a
statement in the amended complaint, even if it were before us, is too remote to satisfy the
requirement that he provide a written protest and notice of intention to sue
contemporaneously with his payment. Accordingly, the trial court properly granted
summary judgment to the Clark County Defendants on Johnson’s claim for
reimbursement of his 2018 payment of $644.35 for the 2017 assessment.
VI. Conclusion
{¶ 75} The trial court’s judgment will be affirmed as to Johnson’s request for
reimbursement of his payment on the 2017 assessment, paid in 2018, as to all claims.
{¶ 76} With respect to his claims regarding the 2016 assessment, paid in 2017, the
trial court’s judgment will be affirmed as to Johnson’s second, third, and fifth claims for
relief and the portion of Johnson’s fourth claim related to the County Engineer’s failure to
obtain bids for maintenance work. The judgment will be reversed as to Johnson’s first
claim for relief (20 percent balance) and the remainder of his fourth claim for relief
(application of maintenance costs to the Goose Creek Ditch Maintenance Fund), and the
matter is remanded for further proceedings on those claims.
.............
-30-
DONOVAN, J., concurs.
HALL, J., concurs in part and dissents in part:
{¶ 77} I agree with the majority’s resolution of most of the issues in this appeal. I
disagree with the majority’s conclusion that the affidavit in support of summary judgment
presented by County Engineer Jonathan Burr, with updated Goose Creek ditch-
maintenance fund balances between 2011 and 2018, should be ignored because of a
theoretically contrary statement in the answer. Johnson had attached three documents to
his complaint, attachments 1-3, and argues that they were “ditch report estimates that
showed estimated Goose Creek Ditch maintenance fund balances * * * that would exceed
the 20% construction base threshold.” Appellant’s Brief at 6. The affidavit of the County
Engineer demonstrates that the prior ditch balance estimates of Mark Niccolini, the retired
former ditch supervisor for the Clark County engineer’s office, were just wrong. Johnson
claims this reevaluation was discovered by the engineer’s office in the summer of 2018.
But Johnson, who did no discovery for a year and a half, also claims he was unaware of
the revisions until the engineer’s affidavit was filed in support of the motion for summary
judgment
{¶ 78} It is the position of the majority in ¶ 33 that because the County Engineer’s
answer to the complaint stated that each document Johnson attached to his complaint
“speaks for itself,” then the Clark County Defendants effectively admitted that the
documents were (1) authenticated, (2) admissible, and (3) accurate. I conclude “speaks
for itself” does none of these things, and those “exhibits” were not properly before the trial
court for purposes of the summary judgment motion. Although Johnson does argue that
the Clark County Defendants’ answers should have been amended to allow presentation
-31-
of the Engineer’s corrected information, that argument is based on the contention that the
answers assert that the County Auditor keeps track of the ditch fund balances, not the
County Engineer. Johnson never contended or argued that the “speaks for itself”
language in the answers cited by the majority constituted an admission of the authenticity,
admissibility, or accuracy of the attachments to his complaint. Moreover, even if the
answers contend that the balance of any fund is recorded by the County Auditor, not the
County Engineer, that doesn’t sound like an admission that the attachments to the
complaint were accurate, and in my opinion did not preclude the trial court from
considering a properly presented summary judgment affidavit of someone with
knowledge. Accordingly, when the Clark County Defendants’ motion for summary
judgment was filed, with the Burr affidavit and the corrected monetary balances, the trial
court correctly considered that affidavit and the information. The answers did not preclude
the court from considering the correct information.
{¶ 79} The majority cites Stanwade Metal Prods. v. Heintzelman, 158 Ohio App.3d
228, 2004-Ohio-4196, 814 N.E.2d 572, (at ¶ 35, above) for the proposition that responses
in an answer constitute admissions that cannot be contradicted. But the answers here
were not admissions, and the responses here were markedly different that those in
Stanwade. There, Heintzman, the sole shareholder of Environmental Construction, one
of Heintzman’s “several corporate shells,” contacted Stanwade to purchase a $19,258.26
steel tank. Heintzman had the tank delivered to Garner Transportation, and Garner paid
Heintzman the purchase price. Stanwade had invoiced Environmental Construction for
the tank. Hientzman issued three $5,000 checks to Stanwade bearing the trade name
“The Home Medic,” one his “shells.” The checks bounced. Stanwade filed suit. In
-32-
response to Stanwade’s motion for summary judgment, Heintzman claimed he had
informed Stanwade that the transaction would be handled through All-American
Construction, another of the shells. But Heintzman had admitted an allegation of the
complaint that “[b]ased upon the representations made by [Heintzelman] to [Stanwade],
[Stanwade] sold products on account to defendant Environmental Construction and
Design, Inc., for a total amount owed of $19,258.26 (Exhibit ‘A’).” Id. at ¶ 16. In that
context, the court of appeals determined that Heintzman could not change the admission
that Stanwade sold the tank to Environmental Construction. In the end, Heintzman,
operating through multiple shifting entities, was also found personally liable for the
purchase price. There should be no question that Heintzman’s answer to the quoted
allegation of the complaint constituted an admission.
{¶ 80} Here there was no admission that the documents attached to the complaint
were authentic, admissible, or accurate. Even if the answer were considered to be
ambiguous, a contention with which I do not agree, the majority recognizes in footnote 6
of ¶ 46 that the trial court could allow leave for an amendment to the answers under Civ.R.
15. Assuming ambiguity in the answers, effectively that is what the trial court did. But
under the majority’s resolution, the case will be remanded to the trial court, the trial court
will formally grant the defendants leave to clarify their answers, and the same process will
begin again.
{¶ 81} In contrast to the affidavit and attachments of Engineer Johnathan Burr, I
do not believe the attachments to Johnson’s complaint, in the absence of an admission
by the opposing parties, were properly before the court in response to the motion for
summary judgment. The majority indicates the complaint was verified by affidavit, but that
-33-
alone was insufficient to comply with Civ.R. 56. And Johnson failed to demonstrate
personal knowledge that the attachments were accurate. Therefore, those documents
were insufficient to create genuine issues of material fact.
{¶ 82} Indeed, in response to the motion for summary judgment, Johnson did
request additional time to conduct discovery. But the complaint was filed February 9,
2018. A March 13, 2019 pretrial order set deadlines including a time for filing dispositive
motions of June 18, 2019 and discovery cutoff of June 30, 2018, a Sunday, making the
cutoff July 1, 2018. The motion for summary judgment was filed June 18. On July 11,
2018, Johnson filed his response to the motion for summary judgment and a motion for a
continuance to conduct further discovery. Johnson did not file a Civ.R. 56(F) affidavit and
did not conduct any discovery whatsoever. I agree with the majority’s conclusion at ¶ 22
that the trial court did not abuse its discretion by failing to grant Johnson additional time
for discovery.
{¶ 83} Based on the foregoing analysis, I would affirm the judgment of the trial
court granting summary judgment to the Clark County Defendants.
Copies sent to:
William S. Johnson
Andrew P. Pickering
Beau P. Thompson
William D. Hoffman
Hon. Richard J. O’Neill