2020 Ohio 3201
Ohio Ct. App.2020Background
- Plaintiff William S. Johnson owns a 155‑acre farm benefitted by the Goose Creek Ditch; original construction cost (the construction base) was $14,304.73.
- Clark County placed special ditch maintenance assessments on Johnson’s tax bills: $2,022.25 (assessed 2016, payable 2017; paid under protest) and $644.35 (assessed 2017, payable 2018; paid without contemporaneous protest).
- Johnson sued claiming (1) the ditch maintenance fund exceeded the 20% unencumbered‑balance cap, (2) the board failed to perform the six‑year review/update of the permanent assessment base, (3) he was overassessed relative to changed land use, (4) the County Engineer failed to use the most economical maintenance methods (no bidding) and charged excessive mowing/equipment costs, and (5) the board improperly approved a large percentage assessment for 2017 and he sought damages/refund.
- The county moved for summary judgment supported by affidavits (including County Engineer Jonathan Burr) and ditch reports; the trial court granted summary judgment for the county on all claims.
- On appeal the court: affirmed dismissal of Johnson’s 2017 refund claim (no contemporaneous protest); affirmed summary judgment on six‑year review and bidding/force‑account issue; reversed and remanded as to (a) whether the fund exceeded 20% and (b) whether maintenance costs were improperly charged, finding genuine factual disputes and inadequate evidentiary showing by the county.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the Goose Creek ditch maintenance fund ever have an unencumbered balance >20% of the construction base? | Johnson: County ditch reports/estimates showed year‑end balances exceeding the 20% cap (>$2,860.95). | County: Updated Engineer/Auditor records show balances under 20%; prior estimates were erroneous. | Trial court erred to grant summary judgment for county; genuine factual dispute exists about fund balances — claim reversed and remanded. |
| Did the board fail to perform the statutory six‑year review and is failure mandatory/voiding assessments? | Johnson: Board did not review/update permanent assessment base every six years, making assessments illegal. | County: A six‑year review was performed in 2016; statute is directory/does not give owners a private cause to compel retroactive relief. | Summary judgment for county affirmed on six‑year review and related overassessment claims (no entitlement shown to automatic relief). |
| Did the County Engineer violate R.C. 6137.05 by not bidding (force account) and did the county improperly/illegally charge excessive mowing/equipment costs to the ditch fund? | Johnson: Engineer failed to seek bids; maintenance hours/equipment charges and equipment purchases were excessive and improperly charged to the Goose Creek fund. | County: R.C. 6137.05 permits force‑account work; choosing in‑house performance is lawful; Johnson points to excess but county provided no proof of illegal charges. | County entitled to summary judgment on the bidding/force‑account theory (statute permits force account). But summary judgment was improper as to alleged improper charging/excessive maintenance costs because county failed to present evidentiary support — reversed/remanded on charging issue. |
| Is Johnson barred from recovering the 2017 (paid in 2018) assessment because he failed to file a written protest and notice before/when paying? | Johnson: He had earlier litigation and argued prior filings constituted a blanket protest. | County: R.C. 2723.03 requires a contemporaneous written protest and notice of intent to sue to preserve a refund claim; Johnson did not comply. | Affirmed for county: 2017 payment refund claim barred for lack of timely written protest/notice. |
Key Cases Cited
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (Ohio 1998) (summary judgment standard; no genuine issue of material fact).
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (Ohio 1988) (burden‑shifting framework for summary judgment movant and nonmovant).
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (party opposing summary judgment must present specific evidentiary materials showing genuine issues).
- Turner v. Turner, 67 Ohio St.3d 337 (Ohio 1993) (moving party cannot rely on an affidavit that contradicts earlier testimony to obtain summary judgment).
- Ryan v. Tracy, 6 Ohio St.3d 363 (Ohio 1983) (strict compliance required for written protest/notice under statutory tax/assessment refund procedures).
- Blisswood Village Homeowners Assn. v. McCormack, 38 Ohio St.3d 73 (Ohio 1988) (failure to comply with statutory protest/notice bars refund action).
- Stanwade Metal Prods. v. Heintzelman, 158 Ohio App.3d 228 (Ohio Ct. App. 2004) (admissions in answers may preclude later contradictory testimony).
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard).
- LaBorde v. Gahanna, 35 N.E.3d 55 (10th Dist. 2015) (refund of erroneously‑collected taxes is equitable restitution).