Ohio Dept. of Job & Family Servs. v. Amatore

[Cite as Ohio Dept. of Job & Family Servs. v. Amatore, 2010-Ohio-2848.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, DEPARTMENT OF )
JOB AND FAMILY SERVICES, )
) CASE NO. 09 MA 159
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
ANTHONY AMATORE, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 07CV2316.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Alan Weinberg
323 West Lakeside Avenue
Cleveland, Ohio 44113
For Defendant-Appellant: Attorney Thomas Michaels
839 Southwestern Run
Youngstown, Ohio 44514
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 18, 2010
VUKOVICH, P.J.
¶{1} Defendant-appellant Anthony Amatore, dba A.J. Amatore & Co.
(Amatore), appeals the decision of the Mahoning County Common Pleas Court
granting summary judgment for plaintiff-appellee Ohio Department of Job and Family
Services (ODJFS). There are two issues in this appeal. The first is whether the
statement from ODJFS attached to the complaint is prima facie evidence of Amatore’s
liability. Or in other words, does the attachment comply with R.C. 4141.27 and provide
proper evidence to support a motion for summary judgment? The second issue
involves the statute of limitations in R.C. 4141.23(F) for seeking unpaid unemployment
contributions from the employer and whether the statement from ODJFS attached to
the complaint establishes that ODJFS filed its complaint seeking compensation for
unpaid contributions prior to the expiration of the statute of limitations. For the reasons
expressed below, the judgment of the trial court is hereby affirmed.
STATEMENT OF THE CASE
¶{2} On June 27, 2007, ODJFS, acting on behalf of the Ohio Attorney
General pursuant to R.C. 109.08, filed a complaint against Amatore seeking unpaid
unemployment compensation contributions. The complaint alleged that Amatore owed
ODJFS a total of $7,590.75 (principal balance of $5,100.02 plus $2,490.73 in interest).
Attached to the complaint are three documents. The first document is titled “Finding
and Determination of Taxable Periods and Amount of Payments in Lieu of
Contributions Due with Interest and Final Notice of Amounts Due” (Finding and
Determination). This document is an accounting of the principal and interest due to
ODJFS. The document states it is from “Helen E. Jones-Kelly, Director Ohio
Department of Job and Family Services, by Janet D. Wise, Supervisor, Bureau of UC
Tax - Collection Section/Litigation Unit” and contains a signature. Also present on the
document is an embossed seal from ODJFS. The next two documents are
“Determination of Employer’s Liability and Contribution Rate Determination” and are
certified to be true and accurate copies.
¶{3} After Amatore filed his answer denying liability and asserting as a
defense that the statute of limitations had run, ODJFS filed a motion for summary
judgment. In the motion for summary judgment it argued that, pursuant to R.C.
4141.27, the Finding and Determination document that was attached to the complaint
is prima facie evidence of the amount owed to ODJFS. 06/24/08 Summary Judgment
Motion. It then contended that pursuant to R.C. 4141.23(F) the statute of limitations
had not run. It also purportedly used that document to support this conclusion
because it allegedly shows that the assessment of contributions owed was done within
four years of the contributions due date. Thus, according to ODJFS, pursuant to R.C.
4141.23(F), a six year statute of limitations applied and the complaint was filed within
that period. ODJFS did not attach the Finding and Determination document to the
motion for summary judgment, but rather indicated that it was attached to the
complaint.
¶{4} After filing multiple continuances for discovery, Amatore filed its motion in
opposition to summary judgment. He argued that the motion for summary judgment
was not supported by proper evidence because ODJFS relied solely on the allegations
in the pleadings and did not attach any evidence to support its position to the motion
for summary judgment. Likewise, he contended that there was not proper
documentation to show that the action was not time barred.
¶{5} ODJFS replied to the motion in opposition. Attached to the reply is a
copy of the Finding and Determination and an affidavit from counsel stating that he
verified the balance due and owing on the complaint.
¶{6} Amatore then moved to strike the attachments to the reply contending
that those attachments are not proper evidence under Civ.R. 56. ODJFS filed a
response to the motion to strike.
¶{7} After reviewing all the motions, the trial court denied Amatore’s motion to
strike and granted ODJFS’s summary judgment motion. In granting the motion, the
court reasoned:
¶{8} “The arguments of Defendant in response to Plaintiff’s motion for
summary judgment, i.e. that the documents setting forth the amounts due are not
authenticated, cannot serve to create a genuine issue of material fact.
¶{9} “R.C. 4141.27 contemplates the State’s burden in proving amounts due
and owing and permits the State to establish these amounts by submitting a copy of
the Final Findings/Assessments of amounts due. That document [titled ‘Finding and
Determination of Taxable Periods and Amounts of Payments in Lieu of Contributions
Due with Interest and Final Notice of Amounts Due’] was submitted by the Plaintiff as
an attachment/exhibit to its complaint and its reply brief. As such, the document is
valid under 4141.27. The document speaks for itself and is considered as part of the
record in support of the dispositive motion.
¶{10} “Considering the record, and particularly the Final Assessment, no
evidence to the contrary has been presented by Defendant. Further, the Defendant
has failed to point out any portions of the record that demonstrate a genuine issue of
material fact exists in this matter.” 08/13/09 J.E.
¶{11} Thus, judgment in the amount of $7,937.56 was entered in ODJFS’s
favor. Amatore timely appealed that decision.
ASSIGNMENT OF ERROR
¶{12} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
SUMMARY JUDGMENT TO PLAINTIFF-APPELLEE (JUDGMENT ENTRY DATED
AUGUST 13, 2009).”
¶{13} In reviewing an award of summary judgment, appellate courts apply a de
novo standard of review. Cole v. Am. Industries & Resources Corp. (1988), 128 Ohio
App.3d 546, 552. Thus, an appellate court applies the same test as the trial court in
determining whether summary judgment was proper. Civ.R. 56(C) provides that the
trial court shall render summary judgment if no genuine issue of material fact exists
and when construing the evidence most strongly in favor of the nonmoving party,
reasonable minds can only conclude that the moving party is entitled to judgment as a
matter of law. State ex rel. Parsons v. Flemming (1994), 68 Ohio St.3d 509, 511.
¶{14} Amatore argues that summary judgment was not warranted for two
reasons. First, he contends that the Finding and Determination that was attached to
the complaint did not comply with the requirements in R.C. 4141.27. Furthermore, he
contends that the Finding and Determination was not attached to the motion for
summary judgment and thus, could not be considered as evidence to support the
motion. Since ODJFS offered no other evidence to support its motion for summary
judgment, according to Amatore, the motion for summary judgment should have been
denied. Secondly, he argues that there exists a genuine issue of material fact
concerning whether the complaint was filed within “five years after the contributions
became payable” pursuant to R.C. 4141.23(F). Each argument will be addressed in
turn.
A. Attachment to Complaint
¶{15} The core issue under Amatore’s first argument is whether the Finding
and Determination attached to the complaint complies with R.C. 4141.27 and, as such,
constitutes prima facie evidence of Amatore’s liability.
¶{16} R.C. 4141.27 states in pertinent part:
¶{17} “If the director of job and family services finds that any person, firm,
corporation, or association is, or has been, an employer subject to this chapter, which
determination of liability has become final pursuant to the provisions of section
4141.26 of the Revised Code,1 and has failed to comply with such sections, the
director shall determine the period during which the person, firm, corporation or
association was such an employer, which finding and determination is for all purposes
of such sections prima-facie evidence thereof. The director shall forthwith give notice
of said action to the employer who shall immediately thereafter furnish the director with
a payroll covering the period included in said finding, and shall forthwith pay the
amount of contribution determined and fixed by the director.
¶{18} “If said employer fails to furnish such payroll and pay the contribution for
such period within ten days after receiving such notice, the director shall then
determine the amount of contribution due from said employer for the period the
director found the employer to be subject to this chapter, including interest, and shall
notify said employer of the amount thereof and shall order it to be paid. If said amount
is not paid within ten days after receiving notice, the director shall certify that finding
1
R.C. 4141.26(D)(2) and (E) provides that the director’s finding of liability becomes binding
unless the employer, within 30 days of the notice of liability, asks the director to reconsider its finding.
The director must then reconsider the finding and issue its ruling. That determination will become final
unless within 30 days the employer asks for a review from the unemployment compensation review
commission. Once the commission rules on the decision, that ruling becomes final unless within 30
days of that decision an appeal is taken to the Tenth District Court of Appeals.
From the record before this court, it does not appear that Amatore availed himself to the appeal
process in R.C. 4141.26(D)(2) and (E). Thus, the order was final and, as such, ODJFS could seek to
enforce the director’s finding under R.C. 4141.27.
relative to such employer to the attorney general, who shall forthwith institute a civil
action against such employer in the name of the state for the collection of such
contribution and interest. In such action it is sufficient for the plaintiff to set forth a
copy of such finding as certified by the director to the attorney general and to state that
there is due to plaintiff on account of such finding a specified sum which plaintiff claims
with interest. A certified copy of such finding of the amount of contribution due shall be
attached to the petition and is prima-facie evidence of the truth of the facts therein
contained. The answer or demurrer to such petition shall be filed within ten days, the
reply or demurrer to the answer within twenty days, and the demurrer to the reply
within thirty days after the return day of the summons or service by publication. All
motions and demurrers shall be submitted to the court within ten days after they are
filed. As soon as the issues are made up in any such case, it shall be placed at the
head of the trial docket and shall be first in order of trial.” R.C. 4141.27.
¶{19} This statute requires three things. First, that there is a finding from the
director of ODJFS of contributions owed. Second, that that finding be certified to the
attorney general when the employer fails to pay what is owed. Third, a certified copy
of that finding is required to be attached to the complaint.
¶{20} Amatore contends that the Finding and Determination attached to the
complaint does not comply with the state statute’s requirements. Specifically, he
asserts that the Finding and Determination attached to the complaint was an
uncertified copy of the findings from ODJFS.
¶{21} The first paragraph of the Finding and Determination attached to the
complaint states:
¶{22} “After due consideration of all facts presented, investigation and report of
deputy auditor and the evidence, and pursuant to section 4141.242(B) and 4141.27,
Ohio Revised Code, the Director of The Ohio Department of Job & Family Services
finds and determines:”
¶{23} It then indicates that Amatore has failed to comply with the
unemployment laws of Ohio and pay contributions, forfeitures and interest owed.
Following that is a chart of contributions, forfeitures and interest owed.
¶{24} This document is from “Helen E. Jones-Kelley, Director Ohio Department
of Jobs and Family Services by Janet D. Wise, Supervisor” and contains a signature in
blue ink. Over the signature is the embossed seal of ODJFS.
¶{25} Considering all the above, this is a finding from the director of unpaid
unemployment contributions, including forfeiture and interest owed by Amatore.2 Thus,
the finding requirement under R.C. 414.27 is met.
¶{26} Next, we look at the certified copy requirement in R.C. 4141.27. Amatore
insists that the Finding and Determination fails to comply with R.C. 4141.27 because
the Finding and Determination attached was not a certified copy of the original Finding
and Determination.
¶{27} A certified copy by definition is “[a] duplicate of an original document,
certified as an exact reproduction by the officer responsible for issuing or keeping the
original.” Black’s Law Dictionary (8 Ed.2004) 360. This Finding and Determination
attached to the complaint is not a duplicate of the original that contains an attestation
stating it is an exact reproduction of the original. However, this document appears to
be one of many copies of the original Finding and Determination that has been
executed by ODJFS. We know this because the signature on the document is in blue
ink and the embossed seal is corporeal. If it had been a copy of the original Finding
and Determination executed by ODJFS the signature would appear in black and the
embossed seal would not be apparent.
¶{28} That said, the fact that this executed copy is not a copy of the original
with an attestation that is a true and accurate copy does not mean that it does not
qualify as proper evidence under R.C. 4141.27. Evid.R. 902(1) states that “[a]
document bearing a seal purporting to be that * * * of any State * * * or of a political
subdivision, department, officer, or agency thereof, and a signature purporting to be an
attestation or execution” is a self-authenticating document. Evid.R. 902(4) indicates
that properly certified copies of public record are also self-authenticating documents.
These self-authenticating documents do not require extrinsic evidence to authenticate
them. Consequently, a copy from the ODJFS signed and under seal is equivalent to a
2
In reviewing Amatore’s argument in its entirety, he concedes this.
certified copy. Thus, Amatore’s argument that the Finding and Determination does not
comply with R.C. 4141.27 because it is not a certified copy fails.
¶{29} The other remaining requirement of R.C. 4141.27 for the finding to be
considered prima facie evidence of liability is that the finding is to be a finding by
ODJFS certified to the attorney general. The Finding and Determination attached to
the complaint appears to be a finding from the director to Amatore instead of a finding
certified by ODJFS to the attorney general. This is evidenced by the fact that the
document is addressed to Amatore. Furthermore, at the bottom of the document it
states:
¶{30} “That the above contributions, and/or forfeitures together with interest
due are delinquent and that said employer is hereby notified of the amount. The
director will certify same to the Attorney General for collection pursuant to sections
4141.242(B) and 4141.27, O.R.C.”
¶{31} As aforementioned, the statute provides that the director is to determine
the amount of the contribution owed and notify the employer of that amount and order
it to be paid. If it is not paid after receiving notice, the director then is to certify that
finding to the attorney general so that a civil action can be instituted against the
employer for collection of amounts owed.
¶{32} While the Finding and Determination is not a copy of the findings sent to
the Attorney General for it to institute an action for collection, the statement on the
bottom of the document indicates that the director will certify this same copy to the
Attorney General. Consequently, the Finding and Determination is equivalent to what
is required by the statute to establish a prima facie case and, as such, it complies with
R.C. 4141.27.
¶{33} Consequently, for the above reasons, Amatore has failed to establish
that the Finding and Determination attached to the complaint did not comply with R.C.
4141.27. Thus, he fails to show that the Finding and Determination does not establish
prima facie evidence of Amatore’s liability.
¶{34} That said, the Finding and Determination was not attached to the motion
for summary judgment. Amatore argues that since it was not attached it cannot be
considered as evidence to support the motion for summary judgment. Or in other
words, since it was not attached to the motion for summary judgment, for summary
judgment purposes it cannot be considered prima facie evidence of the amount of
unpaid contributions.
¶{35} Civ.R. 56 governs summary judgment motions and the evidence that can
be used to support a summary judgment motion. Section (C) states, in pertinent part:
¶{36} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule.”
¶{37} ODJFS relied on the complaint and the attachment to support its motion
for summary judgment. Civ.R. 7(A) indicates that a complaint is a pleading. Thus,
pursuant to Civ.R. 56(C), the complaint is appropriate evidence to support summary
judgment. However, the rule does not indicate whether an attachment to the
pleadings is considered part of the pleadings for purposes of being admissible
summary judgment evidence.
¶{38} Civ.R. 10(C) provides that “[a] copy of a written instrument attached to a
pleading is a part of the pleading for all purposes.” Thus, an attachment to the
pleading can be considered a part of the pleading if it is a written instrument. The
Second Appellate District has stated that the term “written instrument” in Civ.R. 10(C)
includes “documents that evidence the parties’ rights and obligations. Inskeep v.
Burton, 2d Dist. No. 2007CA11, 2008-Ohio-1982, ¶17. Likewise, courts have indicated
that an accounting and a contract qualify as written instruments under Civ.R. 10(C).
Davis v. Widman, 184 Ohio App.3d 705, 2009-Ohio-5430, ¶18; Oxford Sys.
Integration, Inc. v. Smith-Boughan Mechanical Services, 159 Ohio App.3d 533, 2005-
Ohio-210, ¶13; McDonald Community Fed. Credit Union v. Presco (Nov. 9, 1990), 11th
Dist. No. 89-T-4241.
¶{39} This attachment is a finding and it sets out Amatore’s obligation.
Furthermore, it is also an accounting of unemployment compensation owed to ODJFS.
Consequently, the attachment is a part of the pleadings, is proper evidence to rely on
when moving for summary judgment, and it does not have to be attached to the motion
for summary judgment with an accompanying affidavit. See Wright v. Mahoning Cty.
Bd. of Commrs., 7th Dist No. 08MA77, 2009-Ohio-561, ¶18; Mitchell v. Strong, 163
Ohio App.3d 638, 2005-Ohio-5354, ¶24-25 (stating attachments to complaint were
considered when deciding the motion for summary judgment); City of New Lexington
v. Dutiel, 5th Dist. Nos. 01CA3, 01CA6, and 01CA7, 2002-Ohio-1284 (stating,
“Pleadings are specifically identified in Civ. R. 56(C) as evidence upon which a trial
court can rely in deciding whether to grant summary judgment. ‘A copy of any written
instrument attached to a pleading is a part thereof for all purposes.’ Civ. R. 10(C).
Therefore, the documents [statements and copies of unpaid water bills] attached to the
Complaint were part of the Complaint and were reviewable by the trial court in
rendering summary judgment.”).
¶{40} Hence, for the above reasons, we find that the Finding and
Determination attached to the complaint complies with R.C. 4141.27 and that it was
proper evidence for summary judgment. Thus, it established a prima facie case for
ODJFS and shifted the burden to Amatore to show that the amount was not owed.
Amatore did not meet its burden and therefore, summary judgment was proper.
B. Statute of Limitations
¶{41} Amatore’s second argument is that there is a genuine issue of material
fact as to whether the complaint was filed within “five years” after the contributions
became payable.
¶{42} The limitations period applicable to the cause of action brought by
ODJFS is in R.C 4141.23(F). It states:
¶{43} “Assessment of contributions shall not be made after four years from the
date on which such contributions became payable, and no action in court for the
collection of contributions without assessment of such contributions shall be begun
after the expiration of five years from the date such contributions became payable. * * *
When the assessment of contributions has been made within such four-year period
provided, action in court to collect such contributions may be begun within, but not
later than, six years after such assessment.”
¶{44} Amatore is under the impression that the first sentence of this section is
applicable to him. Thus, his argument is premised on the belief that ODJFS did not
assess the contributions within four years. ODJFS, on the other hand, contends that
the last sentence of section (F) is applicable. It contends that the Finding and
Determination shows that the amounts owed were assessed within four years. It
asserts that the Debit Date column on the Finding and Determination is the
assessment date. As such, ODJFS asserts that there is a six year statute of
limitations for bringing the complaint.
¶{45} Given the arguments, we must decide whether the five or six year statute
of limitations in R.C. 4141.23(F) is applicable. This question requires examination of
the Finding and Determination, which we have already indicated was proper evidence
to consider when ruling on the motion for summary judgment. The determination of
whether the five or six year statute of limitations applies requires us to decide whether
there is a genuine issue of material fact that the Debit Date column on the Finding and
Determination is the date the assessment of contributions was made.
¶{46} The Ohio Administrative Code indicates that the payment of
unemployment compensation for each quarter is due “no later than the last day of the
first month following the close of the calendar quarter for which such contributions are
payable.” Ohio Adm.Code 4141-11-02. For instance, in the matter at hand, for the
second quarter of 2001 the contributions were due on the last day of July. The Finding
and Determination shows that for the second quarter of 2001, the Debit Date was
October 22, 2001. At that date it was determined that $125.25 in contributions were
owed. Since the October 22, 2001 date is after the date the contribution was payable
for the second quarter, the logical conclusion is that the Debit Date is actually the
assessment date. Likewise, the rest of the chart supports that conclusion since the
Debit Date was always months after the contributions were due. That said, we note
that in making its future charts showing unpaid monies owed, ODJFS should re-label
the Debit Date column to Assessment Date so that it is abundantly clear to all viewing
the chart that it is the assessment date for purposes of R.C. 4141.23(F).
¶{47} Since there is no genuine issue of material fact that Debit Date is the
Assessment date in order for the six year, and not the five year, statute of limitations to
apply, we must review the chart for when the contributions were due and when the
assessment was done. If the assessment was done within four years of the
contributions due date, the six year statute of limitations is applicable. If not, then the
five year statute of limitations is applicable. The chart shows that all assessments
were done within approximately thirteen months of the date the contributions were
due. As such, the six year statute of limitations in R.C. 4141.23(F) is applicable.
¶{48} Furthermore, the oldest assessment date was November 21, 2001. The
complaint was filed June 2007. Thus, the complaint was filed within the applicable six
year statute of limitations. Amatore’s argument to the contrary fails.
CONCLUSION
¶{49} In conclusion, the Finding and Determination attached to the complaint
complies with R.C. 4141.27 and, pursuant to Civ.R. 56 and Civ.R. 10, it is proper
evidence to consider when ruling on a motion for summary judgment. That attachment
is prima facie evidence of unemployment contributions owed by Amatore to ODJFS.
Amatore did not meet its reciprocal burden to show that that amount was not owed.
Furthermore, the Finding and Determination verifies that the complaint was filed within
the six year statute of limitations in R.C. 4141.23(F). The assignment of error is
meritless.
¶{50} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.