Cragon v. Shinkle
2017 Ohio 617
| Ohio Ct. App. | 2017Background
- Shinkle owns six parcels; all six became delinquent with taxes and assessments by 2003.
- Cragon filed a foreclosure action in December 2011 against Shinkle and the DOT, seeking six parcels; Village of Rock Creek was a missing party.
- The first case was dismissed for failure to join a necessary party and was without prejudice, despite a motion to dismiss dated March 20, 2012.
- Approximately two years later Cragon refiled against the six parcels, adding Rock Creek and the DOT as co-defendants and alleging $133,750.23 owed.
- Shinkle moved to dismiss again, arguing the prior dismissal barred the current action; Cragon opposed, asserting the prior dismissal did not extinguish liability.
- After discovery, Cragon moved for summary judgment supported by a deputy clerk affidavit with certified Tax Duplicates; Shinkle argued for a Civ.R. 56(F) extension to dispute findings about payments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of prior dismissal on current action | Prior dismissal was without prejudice; current action not barred. | Dismissal on merits or for failure to join could bar later actions. | Prior dismissal was without prejudice; current case not barred. |
| Sufficiency of summary judgment given a factual dispute about amount owed | Tax Duplicates and affidavit establish the debt and lien; no genuine issue. | Affidavit creates a factual dispute over the amount due due to possible payments not reflected. | Summary judgment improper; factual dispute remained; remand required. |
| Proper consideration of deputy clerk affidavit and attached Tax Duplicates | Affidavit properly authenticates copies of the Duplicates; competent evidence of ownership and delinquency. | Affidavit lacks clarity about attachments; risk of misidentification. | Affidavit and attachments properly incorporated and considered. |
Key Cases Cited
- Gordon v. Figetakis, 9th Dist. Summit No. 22589, 2005-Ohio-5181 (9th Dist. Summit (2005)) (dismissal for failure to join a party, effect on subsequent actions; Civ.R. 41(B)(4)(b))
- State ex rel. Caszatt v. Gibson, 11th Dist. Lake No. 2012-L-107, 2013-Ohio-213 (11th Dist. Lake (2013)) (summary-judgment standards; Civ.R. 56(E) specificity guidance)
- Summers & Vargas Co. v. Abboud, 2010-Ohio-5595 (Ohio App. (2010)) (due process considerations in summary judgment when facts remain)