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Alt v. Pazmino-Stanfield

Court of Appeals of Ohio, Third District, Seneca

June 18, 2018

DAMON D. ALT, SENECA COUNTY TREASURER, PLAINTIFF-APPELLEE,
v.
RAFAELA MERCEDES PAZMINO-STANFIELD, ET AL., DEFENDANTS-APPELLANTS.

          Appeal from Seneca County Common Pleas Court Trial Court No. 17 CV 0004

          John T. Barga for Appellants

          Derek W. DeVine for Appellee

          OPINION

          ZIMMERMAN, J.

         {¶1} Defendant-Appellants, Rafeala Mercedes Pazmino-Stanfield and Kirk Stanfield (collectively referred to as "Appellants") appeal the judgment of the Seneca County Common Pleas Court granting summary judgment to Plaintiff-Appellee, Damond D. Alt, the Seneca County Treasurer ("Appellee"). On appeal, Appellants assert that the trial court erred: 1) by granting the Appellee's motion for summary judgment; 2) by overruling the Appellants' objection to Appellee's affidavit; and 3) by granting judgment in the sum of $11, 407.92 in favor of Appellee and against the Appellants. For the following reasons, we affirm the ruling of the trial court.

         Factual and Procedural Background

         {¶2} Appellant Rafeala Mercedes Pazmino-Stanfield ("Rafeala") is the owner of real property located at 114 West Tiffin Street in Attica, Ohio. (Doc. No. 1). Rafeala resides at the residence with her husband, Appellant Kirk Stanfield ("Kirk"). (Doc. No. 37). This case involves the water/sewer assessments on Appellants' property by the Village of Attica.

         {¶3} In November, 2009, Appellants requested that the Village of Attica (the "Village") turn off the water service at the curb of their property. (Id.). The Village complied with the Appellants' request. However, the Village's sewer services to the property were not terminated. As to sewer fees, as of November, 2009, Appellants were being assessed $1.00 per month for their sewer service by the Village. (Id.). But, in January, 2010, the Village enacted Ordinance No. 2009-50, which created an assessment of a flat monthly sewer rate (to Appellants) in the amount of $64.14 per month. (Id.). As a result of this ordinance, Appellants refused and failed to pay the sewer assessment charges, even though they did pay their normal real estate taxes. (08/15/17 Tr., Damond D. Alt, at 10-11). However, in 2016, Appellants stopped paying their real estate taxes altogether. (Id.)

         {¶4} As a result of Appellants' failure to pay their property taxes and assessments, the Seneca County Prosecutor's Office, Appellee's attorney, instituted a tax foreclosure proceeding (the "complaint") against Appellants in the Seneca County Common Pleas Court on January 3, 2017. (Doc. No. 1). In its complaint, Appellee asserted that the Seneca County Auditor had duly filed a master list of real property parcels located in Seneca County which were delinquent in the payment of real estate taxes and assessments. (Id.). Further, Appellee attached the relevant portion of the master list regarding Appellants' real estate delinquencies to the complaint, identified as Exhibit B. (Id., Ex. B). The foreclosure complaint alleged that Rafeala owed the sum of $5, 231.43 in delinquent taxes, assessments, penalties, and interest for 2015 and for prior years relative to her real estate. (Id.). As a result of Rafeala's unpaid real estate taxes and assessments, Appellee asserted that it had a valid first lien on Rafeala's property that was subject to foreclosure. (Id.).

          {¶5} In its foreclosure complaint, Appellee requested judgment be rendered in its favor against Appellants for the amount of $5, 231.43, plus interest, per annum, at the statutory rate from the date of filing the complaint, along with accrued taxes, assessments, penalties, and costs. (Id.). Appellee further requested that its lien against Rafeala's property be declared valid, be foreclosed, and that Appellants property be sold to satisfy the lien. (Id.).

         {¶6} On February 16, 2017, Appellants filed their answer to the complaint, denying being delinquent in paying their taxes, asserting six affirmative defenses. (Doc. No. 12).

         {¶7} On April 7, 2017, Appellee moved for summary judgment pursuant to Civ.R. 56. (Doc. No. 15). Appellee asserted that as of March 27, 2017, Appellants owed $5, 945.58 in delinquent taxes, assessments, interest, and penalties to Appellee. (Id.). In support of its motion for summary judgment, Appellee attached (to the motion) the legal description of Appellants' real property; an affidavit[1]indicating that Appellants' delinquent taxes, assessments, charges, penalties, and interest due amounted to $5, 945.58 as of March 27, 2017; and the affidavit of Julie A. Adkins ("Adkins"), the Auditor of Seneca County, Ohio, asserting that the fair market value of the property as of March 27, 2017 was $75, 020.00. (Id., Ex. Nos. A, B, C). Appellee asserted that based upon the pleadings and the submitted affidavits, there were no genuine issues of fact remaining for determination by the trial court.

         {¶8} Prior to responding to Appellee's motion for summary judgment, Appellants took the depositions of Appellee; Adkins; and Gregory A. Martin, the Administrator of the Village of Attica. (See, 8/15/2017 Tr., Damond D. Alt; 8/15/2017 Tr., Julie A. Adkins; and 8/15/2017 Tr., Gregory A. Martin). After taking these depositions, Appellants filed their response to Appellee's motion for summary judgment on September 1, 2017. (Doc. No. 37). In addition to asserting that summary judgment was inappropriate due to the existence of genuine issues of material fact surrounding the calculation of their delinquent taxes, Appellants also objected to the affidavit of Appellee, arguing that the affidavit was not based upon personal knowledge pursuant to Civ.R. 56(E). (Id.).

         {¶9} On September 11, 2017, Appellee filed its reply to Appellant's opposition to summary judgment. (Doc. No. 38). A hearing on the motion for summary judgment was set for October 18, 2017 and on October 19, 2017, the trial court granted Appellee's motion for summary judgment. (Doc. Nos. 43; 49). In granting the motion for summary judgment, the trial court found that Appellee had "established a prima facie case through the tax certificate that there are delinquent taxes, assessments, penalties, and interest associated with the Property." (Id. at 5). From this judgment entry Appellants appeal, and present the following assignments of error for review:

         ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT WITHOUT ACKNOWLEDGING THAT THE APPELLANTS HAD MET THEIR BURDEN BY ESTABLISHING GENUINE ISSUES OF MATERIAL FACT THAT REMAIN FOR RESOLUTION BY THE TRIER OF FACTS.

         ASSIGNMENT ...


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