[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
