[Cite as Lancaster v. Sweetman Rental, L.L.C., 2013-Ohio-3492.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CITY OF LANCASTER                                    :    JUDGES:
                                                     :
                                                     :    Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                            :    Hon. Patricia A. Delaney, J.
                                                     :    Hon. Craig R. Baldwin, J.
-vs-                                                 :
                                                     :    Case No. 12-CA-128
SWEETMAN RENTAL, LLC ET AL.                          :
Defendants-Appellees                                 :
And                                                  :
ROGER WERTZ                                          :
   Defendant-Appellant                               :    OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Fairfield County Court
                                                          of Common Pleas, Case No. 2011 CV
                                                          01223



JUDGMENT:                                                 AFFIRMED




DATE OF JUDGMENT ENTRY:                                   August 7, 2013




APPEARANCES:

For Plaintiff-Appellee:                                   For Defendant-Appellant:

SUZANA KRASNICKI                                          ROGER WERTZ, pro se
KEITH D. WEINER & ASSOC. CO.                              9909 Birchwood St.
75 Public Square, 4th Floor                               Pickerington, OH 43147
Cleveland, OH 44113
Fairfield County, Case No.12-CA-128                                                       2

Delaney, J.

         {¶1} Appellant Roger Wertz appeals from the October 16, 2012 Order of the

Fairfield County Court of Common Pleas granting appellee City of Lancaster’s Motion

for Summary Judgment.1

                          FACTS AND PROCEDURAL HISTORY

         {¶2} Appellant Wertz is the president and chief operating officer of appellee

Sweetman Rental, LLC (“Sweetman”).             On December 5, 2011, appellee City of

Lancaster (“Lancaster”) filed a complaint in the trial court against appellant and

Sweetman, alleging they failed to pay certain municipal net profit and withholding taxes

as follows:

                [I]n Count I, against [Sweetman] for net profit taxes for the tax years

                of 2004 and 2005, in the principal amount of $1,569.73, plus

                penalties and prejudgment interest in the amount of $601.20, plus

                30% statutory collection costs in the about of $651.28, for a total of

                $2,822.21, plus additional interest on the principal balance only at

                the statutory rate of 12% per annum from August 11, 2011; and in

                Count II against [Sweetman and appellant] for withholding taxes for

                the tax years of 2004 through 2010, in the principal amount of

                $32,322.83, plus penalties and prejudgment interest in the amount

                of $7,434.59, plus 30% statutory collection costs in the amount of

                $11,627.23, for a total of $51,684.65, plus additional interest on the

                principal balance only at the statutory rate of 36% per annum from



1
    Appellee Sweetman Rental, LLC is not a party to this appeal.
Fairfield County, Case No.12-CA-128                                                    3


             August 11, 2011 and costs, less credit for payments received post

             chargeoff.

       {¶3} On March 13, 2012, the trial court entered default judgment against

Sweetman. Sweetman and appellant remitted payments slightly in excess of $5,000 on

their total obligation; as of June 21, 2012, appellee has credited Sweetman and

appellant in the amount of $3,370.31; $2097.03 was applied to Sweetman’s net profit

tax obligations, and $1,273.28 was applied to the joint withholding tax obligations.

       {¶4} On June 28, 2012, appellee filed a motion for summary judgment against

appellant; appellant responded and appellee replied.          The trial court sustained

appellant’s motion for summary judgment on October 16, 2012 and granted judgment,

jointly and severally, in Count II only, in the principal amount of $32,322.83, plus

penalties and prejudgment interest in the amount of $7,434.59, plus 30% statutory

collection costs in the amount of $11,627.23 for a total of $51,684.65, plus additional

interest on the principal balance only at the statutory rate of 36% per annum from

August 11, 2011 and costs; less credit for payments received and applied to Count II’s

withholding taxes only, in the amount of $1,273.28.

       {¶5} Appellant appeals from the judgment of the trial court granting appellee’s

motion for summary judgment.

       {¶6} Appellant raises one assignment of error:

                               ASSIGNMENT OF ERROR

       {¶7} “I.     TRIAL COURT ERRED IN GRANTING THE MOTION FOR

SUMMARY JUDGMENT BECAUSE IT FAILED TO CONSIDER GENUINE ISSUES OF

MATERIAL FACT RELATED TO THE MATTER BEFORE IT.”
Fairfield County, Case No.12-CA-128                                                4


                                       ANALYSIS

                                            I.

       {¶8} Appellant argues the trial court erred in granting appellee’s motion for

summary judgment because it should have taken into account issues of material fact in

a “parallel and related legal action.” We disagree.

       {¶9} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman

v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

                    Civ.R. 56(C) provides that before summary judgment may be

                    granted, it must be determined that (1) no genuine issue as

                    to any material fact remains to be litigated, (2) the moving

                    party is entitled to judgment as a matter of law, and (3) it

                    appears from the evidence that reasonable minds can come

                    to but one conclusion, and viewing such evidence most

                    strongly in favor of the nonmoving party, that conclusion is

                    adverse to the party against whom the motion for summary

                    judgment is made. State ex rel. Parsons v. Fleming, 68 Ohio

                    St.3d 509, 511, 628 N.E.2d 1377 (1994), citing Temple v.

                    Wean United, Inc. 50 Ohio St.2d 317, 327, 364 N.E.2d 267

                    (1977).

       {¶10} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgment motions on the same
Fairfield County, Case No.12-CA-128                                                      5

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35, 36, 56 N.E.2d 212 (1987).

       {¶11} Appellant asks us to consider facts arising from a different Fairfield County

case and appended exhibits to his brief related thereto.         There is no indication,

however, that those exhibits were submitted to the trial court in the instant case in

response to appellee’s motion for summary judgment, and we may not consider them

on appeal. App.R. 9(A) defines the record on appeal as “[t]he original papers and

exhibits thereto filed in the trial court, the transcript of proceedings, if any, including

exhibits, and a certified copy of the docket and journal entries prepared by the clerk of

the trial court * * *.” Appellant's argument is based entirely upon matters not contained

in the trial court record and may not be considered.        State v. Olmstead, 5th Dist.

Richland No. 2007-CA-119, 2008-Ohio-5884, ¶ 20; Swinderman v. Weaver, 5th Dist.

Tuscarawas No. 2001 AP 04 0030, 2002-Ohio-89.

       {¶12} Beyond the procedural irregularity, we also affirm this matter on

substantive grounds. Appellant asks us to prevent appellee from collecting the tax

liability from appellant personally until a determination has been made as to the

sufficiency of the corporate assets but cites no legal basis for doing so.        Instead,

appellee directs us to City of Lancaster Code Section 181.07(b), which states as

follows:

             Such employer in collecting said tax shall be deemed to hold the

             same, until payment is made by such employer to the City of

             Lancaster, Ohio as a Trustee for the benefit of the City of

             Lancaster, Ohio and any such tax collection by such employer from
Fairfield County, Case No.12-CA-128                                                      6


              his employees shall, until the same is paid to the City of Lancaster,

              Ohio be deemed a trust fund in the hand of such employer. Every

              employer or officer of a corporation is deemed to be a Trustee for

              the City of Lancaster in collecting and holding the tax required

              under this ordinance to be withheld. The officer or employee have

              control or supervision of, or charged with the responsibility of, filing

              the report and making payment is personally liable for failure to file

              the report or pay the tax due as required by this section.         The

              dissolution of a corporation or other cessation of a business does

              not discharge an officer’s or employee’s liability for prior failure of

              the corporation to file returns or pay tax due.

       {¶13} The cited ordinance essentially mirrors R.C. 5747.13 and Ohio Adm.Code

5703-7-15. Appellant has failed to raise any issue of material fact and appellee has

thus successfully established it is entitled to judgment as a matter of law.

       {¶14} We find no basis upon which to reverse the trial court’s decision to grant

summary judgment for appellee City of Lancaster.
Fairfield County, Case No.12-CA-128                                                 7


                                   CONCLUSION

       {¶15} Appellant’s sole assignment of error is overruled and the judgment of the

Fairfield County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.



                                       HON. PATRICIA A. DELANEY




                                       HON. WILLIAM B. HOFFMAN



                                       HON. CRAIG R. BALDWIN
