{¶ 3} The Whites recorded the judgment as a lien on Mr. Parks' real estate. When Mr. Parks failed to pay the judgment, the Whites filed a foreclosure action against the Parks (as co-owners of the property) seeking to enforce their judgment award.2 After the Parks answered, the Whites filed a motion for summary judgment asserting that there were no material facts in dispute, thus they were entitled to judgment as a matter of law. The Parks opposed summary judgment.
{¶ 4} On August 9, 2008, the trial court granted the Whites' motion for summary judgment and ordered the property be set for sheriffs sale. The Parks have timely appealed the trial court's judgment, asserting a single assignment of error.
"THE TRIAL COURT ERRED BY GRANTING RICK AND LESLIE WHITES' MOTION FOR SUMMARY JUDGMENT."
{¶ 5} In their sole assignment of error, the Parks argues that the Whites have sought to enforce a judgment lien against real property co-owned by Mrs. Parks, despite the Whites not having a valid lien against her. Mrs. Parks points to R.C.
{¶ 6} An appellate court reviews an award of summary judgment de novo.Grafton v. Ohio Edison Co. (1996),
{¶ 7} Pursuant to Civ. R. 56(C), summary judgment is proper if:
"(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 the favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
, 50 Ohio St.2d 317 327 .
The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996),
{¶ 8} As the party moving for summary judgment, it was the Whites' burden to prove that they were entitled to judgment as a matter of law. The Whites' affidavits attached to their summary judgment motion attest to the fact that they have an outstanding judgment lien against *4
Mr. Parks which has not been paid on since it was recorded in December 2007. Accordingly, they argue that R.C.
"(4) A creditor of a survivorship tenant may enforce a lien against the interest of one or more survivorship tenants by an action to marshall liens against the interest of the debtor or debtors. Every person with an interest in or lien against the interest of the debtor or debtors shall be made a party to the action. Upon a determination by the court that a party or cross-claimant has a valid lien against the interest of a survivorship tenant, the title to the real property ceases to be a survivorship tenancy and becomes a tenancy in common. Each tenant in common of that nature then holds an undivided share in the title. The interest of each tenant in common of that nature shall be equal unless otherwise provided in the instrument creating the survivorship tenancy. The court then may order the sale of the fractional interest of the lien debtor or debtors as on execution, and the proceeds of the sale shall be applied to pay the lien creditors in the order of their priority." R.C.
5302.20 (C)(4).
While the Whites' complaint initially identified Mr. Parks as "the owner" of the property, the Whites conceded that the property is co-owned by the Parks as joint tenants with rights of survivorship. The Whites assert that Mrs. Parks is a named defendant to their foreclosure action (as is Third Federal) based upon the statutory directive requiring that "[e]very person with an interest in or lien against the interest of the debtor or debtors shall be made a party to the action." Id. The Whites argue that they have a statutory right to order the sale of Mr. Parks' interest based on the unpaid judgment lien they hold against him. Because the statute unambiguously permits their cause of action, we conclude that the Whites met their Dresher burden. Accordingly, we turn to the Parks to identify why the Whites are not entitled to judgment as a matter of law.
{¶ 9} Mrs. Parks argues that summary judgment is inappropriate as a matter of law because the statute permits the court to "order the sale of the fractional interest of the lien debtor" only. (Emphasis added.) Id. Mrs. Parks makes a blanket assertion that R.C.
{¶ 10} This court has previously determined that "where the language of a statute is clear and unambiguous, it is the duty of the court to enforce the statute as written, making neither additions to the statute nor subtractions therefrom." State v. Knoble, 9th Dist. No. 08CA009359,
{¶ 11} Here, the statute unambiguously sets forth how a judgment creditor goes about enforcing its lien against a debtor who owns property as a joint tenant with rights of survivorship. The Whites have acted in accordance with the statute in that they recorded a valid lien against Mr. Parks and included Mrs. Parks and Third Federal as defendants to their foreclosure action based on their interests in the property. The trial court, too, acted consistent with the statutory framework set forth in R.C.
{¶ 12} The language of R.C.
{¶ 13} Moreover, our review of the law convinces us that the trial court did not err in ordering the entire property sold. In U.S. v.Estes (1986),
"Neither estate being an estate by the entireties, it is clear that such estates may be alienable by one spouse without the consent of the other. Accordingly, the Government can reach the interest of [the debtor husband], in the two parcels of real estate, by foreclosing upon the whole, reserving in distribution a sufficient sum of money to compensate the [the non-debtor wife], for her interest therein." Id.
Having offered no authority as to why this Court should do anything but apply the statute as written and as applied by other courts, we conclude that the trial court did not err as a matter of law in granting summary judgment for the Whites. *7
{¶ 14} In a fashion similar to her first argument, Mrs. Parks makes a blanket assertion that the trial court further erred when it gave payment of the foreclosure costs first priority in distribution of the proceeds following the foreclosure sale. She maintains that this prioritization effectively orders her to pay half of the foreclosure costs that stem from a judgment lien to which she is not a party and owes no debt. Again, her two-sentence argument is unsupported by any citations to statutes or caselaw. Furthermore, her argument contradicts the statutory priority that is given to the costs of sale when property is subject to foreclosure. See, e.g., R.C.
{¶ 15} Mrs. Parks has failed to meet her reciprocal Dresher burden of demonstrating to this Court that the trial court erred as a matter of law in granting summary judgment in favor of the Whites. Accordingly, the Parks' sole assignment of error is overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to Appellants.
SLABY, J. MOORE, P. J. CONCUR