DocketNumber: Accelerated Case No. 2000-P-0106.
Citation Numbers: 766 N.E.2d 209, 146 Ohio App. 3d 376
Judges: CHRISTLEY, J.
Filed Date: 10/22/2001
Status: Precedential
Modified Date: 1/13/2023
The following facts are relevant to this appeal. On December 2, 1997, appellee recorded a certificate of judgment lien in the Portage County Court of Common Pleas in the amount of $355,009.01. The judgment had been entered against appellant as a responsible corporate officer of Buckeye Fireworks Novelty Co., Inc., under R.C.
In an effort to enforce its judgment, appellee filed a court order and notice of garnishment with the trial court that was purportedly served upon appellant and Firstar Bank ("Firstar"). On July 6, 2000, Firstar filed its answer and deposited a check with the clerk of courts for $2,706.71.
The next day, appellant, acting pro se, requested a garnishment hearing, which was set for July 31, 2000. However, before the trial court could conduct the hearing, appellant filed a motion to vacate only the judgment lien. As grounds for the motion, appellant argued, interalia, that he had never received notice of the initial sales tax assessment.
On September 12, 2000, the trial court issued a judgment entry overruling appellant's motion to vacate. In doing so, the court concluded that it did not have jurisdiction to consider appellant's request because R.C.
From this judgment, appellant filed a timely notice of appeal with this court. Under his sole assignment of error, appellant contends that the trial court erred in overruling his motion to vacate because a trial court has jurisdiction to consider the affirmative defenses raised in his motion during a collection proceeding. For the reasons that follow, we agree.
R.C.
"Courts of common pleas may enjoin the illegal levy or collection of taxes and assessments and entertain actions to recover them when collected, without regard to the amount thereof, but no recovery shall be had unless the action is brought within one year after the taxes or assessments are collected."
Although R.C.
"No injunction shall issue suspending or staying any order, determination, or direction of the department of taxation, or any action of the treasurer of state or *Page 378 attorney general required by law to be taken in pursuance of any such order, determination, or direction. This section does not affect any right or defense in any action to collect any tax or penalty."
In construing these two provisions together, the Supreme Court of Ohio has held that "R.C.
In Hakim, the taxpayer did not specifically request injunctive relief; rather, she asked the trial court to vacate a judgment lien that had followed a final sales tax assessment on the grounds of insufficient service of process. The Supreme Court rejected the taxpayer's argument, reasoning that although R.C.
The Supreme Court also observed that the effect of R.C.
In Plickert, we embraced the Supreme Court's holding and similarly concluded that R.C.
"This dictum recognizes the trial court's general jurisdiction to enter judgment upon an affirmative defense raised in the collection proceeding, which was left undisturbed. If such a defense is raised, the state's attempt at collection is not stayed, but proceeds to final judgment, and if the defense is good, judgment will be entered for the taxpayer. While it is true that granting judgment for the debtor for defects in the service of process in this manner has the practical effect of precluding collection efforts, this is not accomplished by the court's equitable power of injunction. Therefore, neither R.C.
5703.38 nor Hakim prohibits a court from considering this defense in the context of an action to collect upon a judgment for delinquent tax." (Emphasis added.) Plickert at 450. See, also, State v. Marysville Steel, Inc. (1997),119 Ohio App.3d 785 .
In light of the foregoing, we conclude that the trial court correctly overruled appellant's motion to vacate the judgment lien. Precedent from both the Supreme Court of Ohio and this court is very clear in holding that R.C.
Having said that, unlike Hakim, the present case was an action tocollect a tax and is, therefore, not affected by R.C.
From looking at the record before us, it clear that the trial court never considered this possibility and only examined appellant's arguments in light of his motion to vacate. However, given that this was a collection proceeding, the trial court should have given appellant the opportunity to provide evidence in support of his defense before granting appellee judgment.
Accordingly, because we conclude that the trial court was not prohibited under R.C.
The judgment of the trial court is, therefore, affirmed in part, reversed in part, and the matter is remanded for further proceedings consistent with this opinion.1
FORD, P. J. and GRENDELL, J. concur.