[Cite as State v. Dixon, 2011-Ohio-4771.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       25696

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JANICE M. DIXON                                     STOW MUNICIPAL COURT
    nka JANICE M. BAKER                             COUNTY OF SUMMIT, OHIO
                                                    CASE No.   2009 CVF 04055
        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: September 21, 2011



        BELFANCE, Presiding Judge.

        {¶1}     Appellant, Janice Dixon, appeals the order of the Stow Municipal Court that

granted summary judgment to the State of Ohio for unpaid educational expenses owed to the

University of Akron. This Court reverses.

        {¶2}     Ms. Dixon graduated from the University of Akron in 1999. In 2010, the State of

Ohio sued her for $1,580.85 in educational expenses that it alleged were due and owing on her

university account. The parties filed cross-motions for summary judgment, and Ms. Dixon

supported her motion with her own affidavit and an affidavit provided by her sister. She also

moved to dismiss the case based on the allegation that the State of Ohio is not the real party in

interest. The trial court granted summary judgment to the State, concluding that Ms. Dixon’s

“bare self-serving assertions” could not demonstrate a genuine issue of material fact regarding

whether all of her educational expenses had been paid. The trial court did not rule on Ms.

Dixon’s motion to dismiss.
                                                 2


                                       ASSIGNMENT OF ERROR I

        “THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
        JUDGMENT WHERE THERE WERE GENUINE ISSUES OF MATERIAL
        FACTS, IN VIOLATION OF RULE 56 OF THE OHIO RULES OF CIVIL
        PROCEDURE.”

        {¶3}    Ms. Dixon’s first assignment of error is that the trial court erred by granting

summary judgment based on the conclusion that her affidavit could not demonstrate genuine

issues of material fact. This Court agrees.

        {¶4}    This Court reviews an order that grants summary judgment de novo. Grafton v.

Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Summary judgment is proper if there are no

genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

See Civ.R. 56(C). In applying this standard, evidence is construed in favor of the nonmoving

party, and summary judgment is appropriate if reasonable minds could only conclude that

judgment should be entered in favor of the movant. Byrd v. Smith, 110 Ohio St.3d 24, 2006-

Ohio-3455, at ¶10. Before the trial court may consider whether the moving party is entitled to

judgment as a matter of law, however, it must determine whether there are genuine issues of

material fact for trial. Id. at ¶12.

        {¶5}    The moving party “‘bears the initial burden of informing the trial court of the

basis for the motion, and identifying those portions of the record that demonstrate the absence of

a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims.’”

Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, quoting Dresher v. Burt (1996), 75 Ohio St.3d

280, 293. The nonmoving party then has a reciprocal burden to set forth specific facts, by

affidavit or as otherwise provided by Civ.R. 56(E), which demonstrate that there is a genuine

issue for trial. Byrd at ¶10.
                                                 3


          {¶6}   As this Court has recognized, the plain language of Civ.R. 56 contemplates that a

party may rely on affidavits to establish that a genuine issue of material fact precludes summary

judgment. Stone v. Cazeau, 9th Dist. No. 07CA009164, 2007-Ohio-6213, at ¶¶13-16. As we

explained in that case:

          “[N]either a moving party nor a nonmoving party is required by Rule 56 to
          provide documents, discovery responses, or transcripts of evidence in addition to
          properly framed affidavits. When a motion for summary judgment or its response
          points to evidence set forth in affidavits, those affidavits must be evaluated as
          would any other evidence permitted by Rule 56 to determine whether the
          affidavits demonstrate the existence or lack of genuine issues of material fact.
          Affidavits are, therefore, entitled to no greater weight than other evidence
          permitted by Rule 56(E) of the Ohio Rules of Civil Procedure. Conversely, they
          are not to be discounted out-of-hand.”

Id. at ¶14. When a nonmovant’s affidavit demonstrates issues of fact that are both genuine and

material, summary judgment is improper. See Stone at ¶¶13-16. On the other hand, an affidavit

that does not demonstrate genuine issues of material fact does not prevent summary judgment in

favor of the moving party. See Estate of Malz v. Olivieri, 9th Dist. No. 23724, 2007-Ohio-7048,

at ¶¶7-8.

          {¶7}   Ms. Dixon’s affidavit provided that, to the best of her knowledge, she had “paid

the University of Akron all monies due, including all tuition, fees, and costs,” and that she

graduated in 1999 without an outstanding balance on her account. She stated that she did not

receive any communication from the University informing her that a bank draft had been

dishonored and, in fact, had no reason to believe she had an outstanding balance until the State

commenced collection proceedings against her in 2009 via tax intercept. Ms. Dixon also noted

that, due to the passage of time, bank records documenting her payment would be difficult to

obtain.
                                                4


       {¶8}    The statements in Ms. Dixon’s affidavit are “‘real, not abstract, frivolous, or

merely colorable.’” Craddock v. Flood Co., 9th Dist. No. 23882, 2008-Ohio-112, at ¶18,

quoting Weber v. Antioch Univ. (Mar. 8, 1995), 2d. Dist. No. 94-CA-83, at *2. They are material

to the question at issue in this case: whether Ms. Dixon has a delinquent student account from

her studies at the University of Akron. See, generally, Wochna v. Mancino, 9th Dist. No.

07CA0059-M, 2008-Ohio-996, at ¶9, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S.

242, 248. (“A disputed fact is material if it is an essential element of the claim as determined by

the applicable substantive law-one which might affect the outcome of the litigation.”) As such,

her affidavit is sufficient to demonstrate that there are genuine issues of material fact, and the

trial court erred by granting summary judgment to the State. Ms. Dixon’s first assignment of

error is overruled.

                                ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS THE
       CASE FOR LACK OF STANDING.”

       {¶9}    Ms. Dixon’s second assignment of error is that the trial court erred by failing to

address her motion to dismiss in which she raised the issue of standing. In light of our resolution

of her first assignment of error, we decline to address the merits of her motion to dismiss for the

first time on appeal. See, e.g., Eden v. Eden, 9th Dist. No. 03CA008250, 2003-Ohio-3588, at

¶11.

       {¶10} Ms. Dixon’s first assignment of error is sustained, and the judgment of the Stow

Municipal Court is reversed.

                                                                               Judgment reversed.
                                                 5




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, J.
MOORE, J.
CONCUR

APPEARANCES:

ADAM M. VAN HO and JAMES A. MERLITTI, Attorneys at Law, for Appellant.

SCOTT W. PARIS, PAUL K. RODE and MICHAEL S. BERKOWITZ, Attorneys at Law, for
Appellee.
